THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 210/2021
In the matter between:
MARGOT BERZACK
APPLICANT
and
HUNTREX 277 (PTY) LTD
FIRST RESPONDENT
REGISTRAR OF DEEDS
SECOND RESPONDENT
CITY OF CAPE TOWN MUNICIPALITY
THIRD RESPONDENT

Neutral citation: Berzack v Huntrex 277 (Pty) Ltd and Others (Case no
210/2021) [2022] ZASCA 17 (21 February 2023)
Coram:
PETSE AP, MOLEMELA and PLASKET JJA and
NHLANGULELA and GOOSEN AJJA
Heard:
3 November 2022
Delivered:
21 February 2023

Summary:
Appeal – application for leave to appeal referred for
argument in terms of s 17(1)(d) of the Superior Courts Act 10 of 2013 –
whether leave to appeal ought to be granted – property law – servitude –
whether a garden servitude registered against the servient tenement for the
benefit of the dominant tenement is a praedial or personal servitude of usus –
whether such servitude is capable of registration in terms of s 66 of the Deeds
Registries Act 47 of 1937.

_____________________________________________________________
ORDER
_____________________________________________________________
On appeal from: Western Cape Division of the High Court, Cape Town
(Meer J, sitting as court of first instance):
The application for leave to appeal is granted.
The appeal is upheld with costs, including the costs of two counsel.
The order of the high court is set aside and replaced with the following
order:
‘The application is dismissed with costs including the costs of two
counsel where so employed.’
_____________________________________________________________
JUDGMENT
_____________________________________________________________
Nhlangulela AJA (Petse AP and Molemela JA concurring):
[1] This is an application for leave to appeal referred to court for argument1
in terms of s 17(2)(d) of the Superior Courts Act 10 of 20132 (the Superior
Courts Act), and, if successful, for the determination of the appeal itself. It is
a sequel to the refusal of leave by a single judge, sitting in the Western Cape
Division of the High Court, Cape Town (the high court). Leave is sought

1 The order of this Court granted on 11 May 2021 reads:
‘1. The application for leave to appeal is referred for oral argument in terms of s 17(2)(d) of the Superior
Courts Act 10 of 2013.
. . .’
2 Section 17(2)(d) reads:
‘The judges considering an application referred to in paragraph (b) may dispose of the application without
the hearing of oral argument, but may, if they are of the opinion that the circumstances so require, order that
it be argued before them at a time and place appointed, and may, whether or not they have so ordered, grant
or refuse the application or refer it to the court for consideration.’

against the decision of the high court delivered on 10 December 2020 in terms
of which a praedial servitude registered against the immovable property of the
first respondent, Huntrex 277 (Pty) Ltd (Huntrex 277), in favour of the
immovable property of the applicant, Ms Margot Berzack, was declared to be
a personal servitude of usus. The order entitled Huntrex 277 to demolish the
wooden pole fence that exists on the servitude area; and to construct its own
wooden pole fence, fitted with a gate, on the eastern and western boundaries
of the properties. Further, the second respondent, the Registrar of Deeds, was
directed to rectify Huntrex 277’s title deed to reflect that the servitude in issue
is not a praedial servitude but a personal servitude of usus.

[2] The counter-application of Ms Berzack, in which she sought the
preservation of her praedial rights or the conferment of such rights by
prescription in terms of s 6 of the Prescription Act 68 of 1969 (the Prescription
Act), was dismissed with costs by the high court.

[3] Only Huntrex 277 took part in this litigation. The second respondent,
the Registrar of Deeds, and third respondent, City of Cape Town, did not take
part both in the high court and this Court.

Admission of further evidence
[4] In addition, Ms Berzack brought before us an application in terms of
s 19(b) of the Superior Courts Act3 for the admission of the further evidence
of Mr Richard James Somerset Moffat (Mr Moffat) and Mrs Margaret Anne

3 Section 19(b) reads:
‘The Supreme Court of Appeal or a Division exercising appeal jurisdiction may, in addition to any power as
may specifically be provided for in any other law . . . receive further evidence.’

Boag (Mrs Boag) in amplification of her application for leave to appeal.
Although this application was initially opposed by Huntrex 277, it did not
persist with its opposition before this Court. Thus, nothing more needs to be
said about this application, save to say that in truth, these two affidavits have
no bearing on the merits of the envisaged appeal. Rather, they were filed in
order to bolster Ms Berzack’s application for leave to appeal.

Leave to appeal application
[5] The fate of the application for leave is dependent on proof to the
satisfaction of this Court that the envisaged appeal would have a reasonable
prospect of success or that there is some other compelling reason why the
appeal should be heard as envisaged in subsections 17(1)(a)(i) and (ii) of the
Superior Court Act,4 respectively.

[6] Regard being had to the papers filed in support of the application for
leave and hearing argument by counsel, I am satisfied that the application for
leave passes muster. The appeal raises important questions of law, such as
whether a servitude involving reservation of rights of access to use and
enjoyment of a garden by Ms Berzack, registered against the property of
Huntrex 277, is a praedial servitude or a personal servitude of usus and,
therefore, hit by the prohibition located in s 66 of the Deeds Registries Act 47
of 1937 (Deeds Registries Act).5

4 Subsections 17(1)(a)(i) and (ii) read:
(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that —
(a)(i)   the appeal would have a reasonable prospect of success; or
(ii)   there is some other compelling reason why the appeal should be heard, including conflicting judgments
on the matter under consideration;

5 Section 66 reads:

Background
[7] The facts of this matter are not in dispute. Ms Berzack is the owner of
a residential property which is described as the remainder of erf 380,
Constantia. Huntrex 277, too, is the owner of the residential property
described as erf 8478, a portion of the original erf 380, Constantia. For
convenience, these residential properties will be referred to as the ‘Berzack
property’ and ‘Huntrex 277 property’ respectively. The Huntrex 277 property
is the subdivision carved out of the original erf 380, which had been registered
in the name of Ms Berzack on 31 December 1970. At the time, erf 380 was an
undivided residential property measuring 8331m² in extent. After taking
occupation of the property from Mr M M Liebman, Ms Berzack created a
garden westward of the house and to a point beyond which the property was
unused and left in its natural vegetated state. She went on to delineate that
point with a wooden fence to cordon off the area of the property that was in
use and to prevent vagrants from encroaching on it. She extended the wooden
fence eastward to the poolside patio to establish a garden.

[8] Troubled by issues of safety posed by the undeveloped western side of
the property, Ms Berzack took a decision to subdivide the property and sell
the portion that lay unused. Ms Berzack’s intention at the time was to align
the subdivision with the western perimeter of the wooden fence. However, she
was prevented from doing so by a local use ordinance which imposed a
minimum erf size of 4000m². In 1982, Ms Berzack subdivided erf 380 into
two separate portions resulting in the Berzack property being reduced to

‘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.’

4320m². To keep the garden as part of her property without contravening the
land use regulations, Ms Berzack was compelled to reserve her rights to the
garden, which had fallen into the subdivided portion, by means of a servitude.
Having identified a willing buyer, Mr A G Wellens, on 21 September 1983,
Ms Berzack transferred erf 8478 to him, subject to a praedial servitude which
was duly endorsed and registered against the title deed of erf 8478 in
accordance with the relevant provisions of the Deeds Registries Act. The
terms of the servitude were set out and incorporated in the deed of transfer in
favour of Mr Wellens.

[9] Erf 8478 was later transferred to two successive other persons at
different times. Ultimately, on 28 February 2017, the third owner, Mr K W
Sander, transferred the property to Huntrex 277.  At all material times relevant
to the transfers of the Huntrex 277 property, the praedial servitude that was
created by means of a contract concluded between Ms Berzack and Mr
Wellens was endorsed on the successive title deeds. I set out below the express
terms of the servitude that is endorsed on the title deed of the Huntrex 277
property:
‘P.
SUBJECT FURTHER to the following conditions contained in said Deed of
Transfer No. T. 39953/1983 imposed by MARGOT BERZACK in favour of herself and
her successors in title as owner of the REMAINDER OF ERF 380 CONSTANTIA, which
conditions are as follows:
(a)
The property hereby transferred is subject to a servitude area 20 (TWENTY) meters
wide, The Western Boundary of which shall be parallel to the boundary marked DE on
Diagram N. 5253/1981 in favour of the REMAINDER OF ERF 380 CONSTANTIA, held
by the said Transferor, MARGOT BERZACK (born ILLMAN) married out of community
of property to Jeffrey Cyril Berzack, under Deed of Transfer No. 38631 dated 31st
December 1970.

(b)
The said servitude shall be subject to the follow [ing] terms and conditions, namely:
(i)
No wall or fence of any description shall be erected on the servitude
boundary except extension of existing type of fencing (wooden pole fencing).

(ii)
The seller shall have the right to plant, control, care for and renew the
existing garden situated within the servitude area more fully described above.
(iii)
The seller shall have full rights of access to such servitude area in fulfilment
of the rights hereby granted.
(The term of Seller shall include her Successors-in-Title).’
I pause here to observe that these conditions of title had survived all three
successive transfers from Mr Wellens without being contested.

[10] Mr Wellens filed an affidavit in support of Ms Berzack’s opposition
confirming, in essence, that the reservation of the garden as a praedial
servitude upon the Huntrex 277 property was agreed to between him and Ms
Berzack. He stated further that the agreement was informed by common
intention that the garden would remain on the Huntrex 277 property for the
sole and unfettered use of Ms Berzack and any subsequent successors-in-title
of the remainder of erf 380, Constantia.

[11] As regards the counter-application, Ms Berzack contended that her
intention and that of Mr Wellens could still be realized by rectification, if
necessary, of clause P of the title deed of Huntrex 277, by inserting
appropriate terms as shown in bold letters below:
‘P.
SUBJECT FURTHER to the following conditions contained in said Deed of
Transfer No. T. 39953/1983 imposed by MARGOT BERZACK in favour of herself and
her successors in title as owner of the REMAINDER OF ERF 380 CONSTANTIA, which
conditions are as follows:
(a)
The property hereby transferred is subject to a servitude area 20 (TWENTY) meters
wide, The Western Boundary of which shall be parallel to the boundary marked DE on

Diagram No. 5253/1981 in favour of the REMAINDER OF ERF 380 CONSTANTIA, held
by the said Transferor, MARGOT BERZACK (born ILLMAN) married out of community
of property to Jeffrey Cyril Berzack, under Deed of Transfer No. 38631 dated 31st
December 1970.
(b)
The said servitude shall be subject to the following terms and conditions, namely:
(i)
No wall or fence of any description shall be erected on the servitude
boundary to enclose it except extension of existing type of fencing (wooden pole
fencing) on its western side.
(ii)
The seller shall have the exclusive right to plant, control, care for and renew
the existing garden situated within the servitude area more fully described above.
(iii)
The seller shall have full and exclusive rights of access to such servitude
area in fulfilment of the rights hereby granted.
(The term of Seller shall include her Successors-in-Title).’

[12] Further alternative relief sought by Ms Berzack in the high court, in the
event of rectification not being successful, was that a praedial right that she
had exercised and enjoyed for more than thirty years be conferred on her and
the Berzack property in terms of s 6 of the Prescription Act6 by virtue of
acquisitive prescription.

[13] The high court decided the main application on the issues of whether
the servitude articulated in clause P of the title deed is praedial or personal in
nature and, if it is a personal servitude, whether the wording of clause P is
capable of being rectified so that it may be converted into a praedial servitude.

6 Section 6 reads:

‘. . ., a person shall acquire a servitude by prescription if he has openly and as though he were entitled to do
so, exercised the rights and powers which a person who has a right to servitude is entitled to exercise, for an
uninterrupted period of thirty years or, in the case of a praedial servitude, for a period which, together with
any periods for which such rights and powers were so exercised by his predecessors in title, constitutes an
uninterrupted period of thirty years.’

After considering the elements of a praedial servitude7 and finding that the
element of utilitas8 was lacking, the high court came to the conclusion that
clause P established a personal servitude of usus which could neither be
rectified nor cured by acquisitive prescription, for the reason that s 66 of the
Deeds Act prohibited such servitude from being registered by the Registrar of
Deeds.

[14] The high court also found that it was appropriate that the title deed of
the Huntrex property be rectified by substituting the original clause P with a
new clause that had been proposed by Huntrex 277, which reads:
‘P.
SUBJECT FURTHER to the following conditions imposed by the Transferor in
favour of herself personally, which conditions are as follows:
(a)
The property hereby transferred is subject to a servitude area 20 (twenty) metres
wide, the Western boundary of which shall be parallel to the boundary marked DE on
Diagram No. 5253/1981 of the Remainder of Erf 380 Constantia, held by the said
Transferor, Margaret Berzack (born Illman) married out of community of property to
Jeffrey Cyril Berzack under Deed of Transfer No. 38631 dated 31st December 1970.
(b)
The said servitude shall be subject to the following terms and conditions, namely:

(i)
[deleted]

7 24 Lawsa 2 ed para 546, the elements are listed as follows: ‘(a) there must be two tenements belonging to
different owners; (b) the two tenements must be in close proximity to each other (vicinitas); (c) the servient
tenement must be capable of serving the dominant tenement on a permanent basis (perpetual cause); (d) the
servient tenement must enhance the utility of the dominant tenement (utilitas); (e) no positive obligation may
be imposed on the owner of the servient tenement (passivity); and (f) praedial servitudes are indivisible.’
8 24 Lawsa 2 ed para 549, utilitas is described as follows: ‘A praedial servitude must offer some permanent
advantage or benefit to the owner of the dominant land qua owner and must not merely serve his or her
personal pleasure or caprice. This is known as the requirement of utilitas (utility). It has already been
intimated that utility is a fundamental requirement embodying both vicinity and permanent purpose . . . The
strict view that benefit to the dominant tenement must take the form of some sort of agricultural advantage,
was already relaxed in Roman-Dutch law. Voet states that where additional benefits accompany the
pleasurable pursuits of a particular person, such servitude can validly be constituted as a praedial servitude.
Examples are a servitude of view (prospectus) which simultaneously guarantees a free and useful supply of
light . . . In present day law it is accepted that the utility requirement is not only satisfied if the particular
servitude is of direct agricultural utility to the dominant tenement but also if it increases its economic,
industrial or professional potential.’

(ii)
The Transferor shall have the right to plant, control, care for and renew the
existing garden situated within the servitude area more fully described above.
(iii)
The Transferor shall have full rights of access to such servitude area in
fulfilment of the rights hereby granted.
P bis:  SUBJECT FURTHER to the following condition imposed by the aforesaid
Transferor in favour of the aforesaid Remainder of Erf 380 Constantia, namely, that no
wall or fence of any description shall be erected on the aforesaid servitude area except
extension of existing type of fencing (wooden pole fencing).’

[15] It is worth noting that the rectification of the servitude on the terms that
were proposed by Huntrex 277 was designed to convert the original praedial
servitude into a personal servitude.

Appeal
[16] The appeal against the judgment of the high court is premised on two
main grounds. Firstly, it was submitted on behalf of Ms Berzack that the high
court erred in interpreting the existing clause P on a narrow ground that in the
absence of proof that the servitude inscribed in the title deed served the
element of utilitas; the servitude was, therefore, personal in nature. It was
contended on behalf of Ms Berzack that the interpretation of the servitude is
not supported by the plain language of the servitude, the intention of the
relevant parties when registering the servitude and the subsequent conduct of
the various owners of the Huntrex property.

[17] Secondly, it was contended that the high court erred in failing to take
into cognizance the fact that the existing servitude enures in favour of the
Berzack property, and having economic potential that effectively increases the
size of the Berzack property. Counsel placed reliance on the interpretational

tool espoused in Natal Joint Municipal Pension Fund v Endumeni
Municipality9 (Endumeni) that: ‘the “inevitable point of departure is the
language of the provision itself”, read in context and having regard to the
purpose of the preparation and the background to the preparation and
production of the document.’10 Such an approach to the interpretation of
contractual instruments, including those creating servitudes, had been applied
by this Court in Kruger v Joles Eiendom (Pty) Ltd and Another,11 with
reference to the dictum in Kempenaars v Jonker, Van der Berg and
Havenga,12 where the following was said:
‘It is clear that incidents and the extent of the servitude must depend on the circumstances
under which it was created . . . I think . . . that much must depend on the circumstances
under which the servitude was created, and on the causa et origo servitutis.’13

[18] In argument, it was submitted on behalf of Ms Berzack that regard
being had to the language used, clause P should be read in the context in which
it appears in the title deed, the purpose of the servitude and the background
circumstances giving rise to the creation of the servitude. That exercise begins
with the conception of the garden by Ms Berzack and the subsequent
negotiations that culminated in the sale of the property to Mr Wellens in 1983.
It was submitted that it was wrong of the high court to adopt a sequestered
approach by excising different aspects of the same servitude, preserving as
praedial P(b)(i) and then severing it from P(b)(ii) and (iii), which form an
integral part thereof. It was submitted further that the erroneous deletion of

9 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262
(SCA); 2012 (4) SA 593 (SCA) (Endumeni).
10 Ibid para 18.
11 Kruger v Joles Eiendom (Pty) Ltd and Another [2008] ZASCA 138; [2009] 1 All SA 553 (SCA); 2009 (3)
SA 5 (SCA).
12 Kempenaars v Jonker, Van der Berg and Havenga 1898 5 OR 223.
13 Footnote 11 para 6.

the words ‘her successors-in-title’ and P(b)(i) and substitution thereof with a
newly worded and self-standing paragraph P bis, resulted in the removal of all
the servitudal features of the garden and benefits due to the Berzack property.

[19] Huntrex 277 supports the judgment of the high court on the basis that
clause P(b)(i) embodied a praedial servitude as contended for on behalf of Ms
Berzack, which is typically regarded as servitude irregulars. Such a clause,
Huntrex 277 argued, should be interpreted in the same way as clauses P(b)(ii)
and (iii), i.e.  personal servitude, and not the other way. Therefore, the clauses
being interpreted purposively and contextually, and as a whole, are personal
to Ms Berzack. It was also contended on behalf of Huntrex 277 that clause
P(b)(i) is severable from the personal servitude of usus embodied in clause
P(b)(ii) and (iii) despite the fact that they appear in the same principal clause.

[20] These submissions were premised on the approach to interpretation of
a building contract by separation of its parts as applied in Bondev Midrand
(Pty) Ltd v Puling and Another; Bondev Midrand (Pty) Limited v Ramokgopa
(Bondev)14 They were also premised on the Roman-Dutch law foundations of

14 Bondev, Midrand (Pty) Limited v Puling and Another; Bondev Midrand (Pty) Limited v Ramokgopa [2017]
ZASCA 141; 2017 (6) SA 373 (SCA) (Bondev), paras 19 and 20:
‘But that is a far cry from the circumstances in the present cases. The burden created by the first clause,
namely the obligation to build a dwelling on the property, is binding on the transferees (the respondents) and
their successors in title. The latter have no right under the second clause to bring that restriction to an end.
All clause two provides is that in the event of a failure to build a dwelling in the requisite time the appellant,
as the transferor, can recover the land against the payment of the purchase price if it so chooses. This is akin
to providing the appellant with an option to purchase which is essentially a personal right. But the appellant
is not obliged to demand or claim re-transfer of the land and the obligation to build will remain extant as long
as the respondents retain their ownership. Thus the restriction upon ownership created by clause 1 remains
binding and will not be terminated should the appellant elect not to seek retransfer. The two clauses read
together therefore do not constitute what Streicher JA referred to as “a composite whole” restricting the
respondents’ use of the property.
In the circumstances, the first clause of this condition must be regarded as providing a real right and a
restriction upon the ownership of the property of the respondents and their successors in title. On the other
hand, the second clause under which the appellant has the election to claim re-transfer of the property, creates
no more than a personal right akin to an option to purchase which is not inseparably bound up with the first

servitudes, it being contended on behalf of Huntrex 277 that in the absence of
the element of utilitas in clause P of the existing servitude, the garden
servitude is quintessentially not one of the recognized traditional rural
servitudes of a right of way or access to drinking water on land belonging to
another person. Relying on this, it was argued that the existing servitude is by
definition a personal servitude of usus whose registration is hit by the
prohibition in section 66 of the Deeds Registries Act.

Issues
[21] The main issues for determination on appeal are whether the terms of
clause P amount to a praedial or personal servitude of usus; and, depending
on the nature of servitude that is created in clause P, whether such servitude
is capable of being registered in terms of s 66 of the Deeds Registries Act.
The determination of two secondary issues, namely, rectification and
prescription, depend on the outcome of the determination of the main issues.

Interpretation of contract of servitude
[22] The interpretation of clause P lies at the heart of this matter. Both
parties submitted as much. To the extent that the high court did not interpret
clause P with regard to the grammatical meaning of the words used therein in
light of the context, purpose and the background circumstances under which
the servitude creating contract was made between Ms Berzack and Mr
Wellens in 1983, it erred. It applied a narrow and sequestered method of
interpretation, misconstrued the meaning of utilitas, excised the aspects of
what a praedial servitude was, which resulted in a constrained meaning given

clause. As the appellants sought to enforce the second clause, the issue then becomes whether the debt which
is the subject of such a claim has prescribed.’

to each of those subclauses and mischaracterising the praedial servitude as a
personal servitude of usus. Immediately the servitude was so construed, an
opportunity was missed to unravel the causa et origo of the contract that was
concluded between Ms Berzack and Mr Wellens in 1983. The process of
separating and excising the aspects of clause P is an isolationist approach to
interpreting a contract that is not consonant with what this Court propounded
in Endumeni. Nor do I agree with counsel for Huntrex 277 that the approach
applied by this Court in Bondev finds application in this case.

[23] There, it was held that although the conditions in a title deed of land
transferred by Bondev to each of the respondents entitling Bondev to claim
re-transfer against payments of the original purchase price if neither the
transferee nor their successors-in-title erect a dwelling thereon within a certain
period gave rise to both a real right (to have a dwelling erected) and a personal
right (to claim re-transfer). Each of those rights were interpreted as they stood
on the building contract. They were not denuded of their inherent
characteristics by excision and word alteration processes that we have seen in
this case. To the extent that only the right to claim re-transfer was susceptible
to prescription in terms of the provisions of s 11(d) of the Prescription Act,
those rights were found not to be inextricably wound up together, but were
capable of separate existence. Therefore, Bondev does not support the
argument advanced on behalf of Huntrex 277. In this case, we are dealing with
one composite contract creating a praedial servitude in accordance with what
the parties had intended at the outset.

[24] The meaning of clause P, read as a whole, shows that the element of
utilitas is present. The Huntrex 277 property has been serving the Berzack

property continuously for a period spanning more than thirty years. The right
to the garden is reserved on the servient land and it enures in favour of the
Berzack property, serving the pursuit of Ms Berzack’s personal pleasure or
caprice. Subclauses P, P(a) and P(b)(i) demonstrate this fact. In the same way,
the ancillary clauses in P(b)(ii) and (iii), read together with other subclauses,
describe the manner of access to the servitudal area. The fact that the
servitudal rights are enjoyed by the owner of the dominant tenement is a
natural feature of the praedial right. That the servitude as described in clause
P increases the economic potential of the Berzack property is not in dispute.
Just as the argument advanced on behalf of Ms Berzack that the modern
praedial servitude of view is similar in substance to the garden servitude has
not been contradicted. That said, I have no doubt in my mind that, on the facts
of this case, the intention expressed in writing by Ms Berzack and Mr Wellens
in 1983 was that the garden should be reserved on the Huntrex 277 property
for the former’s benefit and subsequent successors-in-title of the Berzack
property in perpetuity, hence the registration of the servitude.

[25] The finding made by the high court that clause P does not meet the
definition of utilitas is erroneous. In Willoughby’s Consolidated Co Ltd v
Copthall Stores Ltd,15  this Court stated that in the absence of an ambiguity in
the words used in a servitude-creating contract, the golden rule applies in
favour of a praedial servitude having been proved by the person who claims
the existence thereof. In such event, as stated in Northview Properties (Pty)

15 Willoughby’s Consolidated Co Ltd v Copthall Stores Ltd 1918 AD 1 at 16.

Ltd v Lurie,16 ‘there is a presumption of fact arising from registration’17 and
the presumption against the existence of a real servitude does not arise.

[26] The adjunct to the attack against the recognition of a garden servitude
simply on the basis that it is not one of the traditional servitudes does not have
a legal basis. The correct position in our law is that there is no exhaustive list
of real servitudes. On this score, what the Constitutional Court said in City of
Tshwane v Link Africa (Pty) Ltd and Others18 (Link Africa) is instructive. The
Court said:
‘In modern South African law, types of rights and restrictions found in traditional
servitudes have been relaxed. This relaxation has been so extensive “that their number is
“practically unlimited” although certain general requirements have to be fulfilled”. To
determine whether a right in property is a servitude is often a matter of judicial policy. It
depends in part on whether the nature of the right is capable of being recognised as a real
right:
“The essence of a servitude is therefore, that it confers “a real right [to use and enjoyment
of the property of another]”, and it is this direct relationship between the holder of the
servitude and the property to which it relates that distinguishes it from a mere contractual
right against the owner of the property.”
The crucial point is this: the common law on servitudes illustrates that property rights have
dimension, colour and complexity far beyond any barefaced general proposition about
ownership. Servitudes limit the rights of ownership and place certain burdens on property
by affording power of use and enjoyment to another. That has been the case for thousands
of years, for our law of servitudes, both consensual and non-consensual, is derived from
the Roman law.’19

16 Northview Properties (Pty) Ltd v Lurie 1951 (3) SA 688 (A).
17 Ibid at 689.
18 City of Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd and Others [2015] ZACC 29; 2015 (6)
SA 440 (CC); 2015 (11) BCLR 1265 (CC) (Link Africa).
19 Ibid para 138 - 139.

[27] In this case the features of the garden servitude with which we are
concerned meet the distinctive characteristics of a praedial servitude, not a
personal servitude, as shown in Link Africa, where the following was said:
‘A praedial servitude is one where there are at least two pieces of land implicated. The
servitude confers benefits on one piece of land, the dominant tenement, while imposing
corresponding burdens on the other, the servient tenement. A praedial servitude vests in
the owner of the dominant land. But neither its benefit nor its burden can be detached from
the land. These are passed from one land owner to the next.
By contrast, a personal servitude is a real right that attaches to the burdened land, but is
also always connected to an individual. He or she holds the right to use and enjoy another’s
property. That right is non-transferable: it cannot be passed on to another. However,
personal servitudes are always enforceable against the owner of the property burdened by
it – even when that owner changes.’20

[28] On the contrary, the description of a personal servitude of usus makes
it plain that the garden servitude in this case is not a personal servitude of
usus. The authorities state that in the case of a personal servitude of usus
involving a piece of land, the usuary of land may take fruit, vegetables and
other produce for the household’s needs, leaving the remaining produce to the
landowner who may enter and gather it. With regard to using a house, the
usuary may occupy it with his or her family, servants and guests, and may let
out part of the house, provided he or she remains in occupation.21

[29] For the aforementioned reasons, I am driven to the conclusion that the
meaning of the original clause P is that it bears the hallmarks of a praedial
servitude, not a personal servitude of usus. The servitude of the kind spelt out

20 Ibid paras 136 - 137.
21 See, in this regard: F du Bois Wille’s Principles of South African Law 9 ed (2007) in Chapter 23.

in the original clause P does not fit the description of a personal servitude of
usus, but points to it being a praedial servitude not only when viewed in line
with the common intention of the parties but also when interpreted
purposively, contextually and having regard to the background to its
preparation and production. In the event, the registration of the servitude by
the Registrar of Deeds cannot be faulted.

[30] The order authorising Huntrex 277 to demolish the existing wooden
pole fence and erect its fence on the servitudal area, thereby restricting access
by Ms Berzack to the garden ought not to have been granted.

Rectification and prescription
[31] The conclusion reached above that clause P constitutes a praedial
servitude undercuts the submission that s 66 of the Deeds Act prohibits
registration of the servitude. Similarly, there will be no need to decide the
appeal based on rectification and prescription. Suffice it to say that the
judgment and order of the high court cannot stand. And the costs of the appeal
should follow the result.

[32] Before concluding, I need only to say that I have read the judgment
authored by my colleagues, Plasket JA and Goosen AJA. While I agree that
the permanent advantage derived from a feature or attribute of the servient
tenement is not to be confused with the concept of utility, I disagree with the
proposition that there is no feature or attribute of the servient tenement which
can be said to provide an advantage to the dominant tenement. An obvious
concomitant of the garden servitude is that the servient tenement entitles the
dominant tenement to a view of the grounds. The servitutal rights created

indirectly serve as a guarantee that no structure can be constructed on the
grounds designated as the garden area. In this fashion, the dominant
tenement’s poolside entertainment area will always be an area with a view as
it is and will always be adjacent to a section of vacant land. That a view
adds utilitas and
enhances
the
value
of
residential
property
is
incontrovertible.  The fact that in tending the garden, Ms Berzack is, in the
process, able to pursue her personal pleasure or caprice does not detract from
the advantages alluded to.  The argument that the servitude area was identified
in order to circumvent area restrictions imposed by the applicable town
planning scheme is a red-herring, in my view, and is above all belied by the
facts emerging from the record.

Order
[33] In the result, the following order is made:
The application for leave to appeal is granted.
The appeal is upheld with costs, including the costs of two counsel.
The order of the high court is set aside and replaced with the following
order:
‘The application is dismissed with costs including the costs of two counsel
where so employed.’

__________________
Z M NHLANGULELA
ACTING JUDGE OF APPEAL

Plasket JA and Goosen AJA

[34] We are unable to agree with the order that our colleague, Nhlangulela
AJA, proposes. We only agree with him that leave to appeal should be granted
in respect of paragraphs 1, 2, 3, 4 and part of paragraph 8 of the order of the
high court, and that the appeal should be upheld to that extent. For the rest,
we would dismiss the application for leave to appeal with costs, including the
costs of two counsel.

[35] This matter turns ultimately on whether the servitude in question is a
praedial servitude or personal servitude of usus. The implications of a finding
that the servitude is a praedial servitude are that it accrues to successors in title
to the current owner, Ms Berzack, and will burden the servient tenement in
perpetuity. If, however, the servitude is a personal servitude, it accrues only
to Ms Berzack while she owns the dominant tenement. The consequences that
flow from the decision as to the nature of the servitude are thus far-reaching
and of immense importance, not least to the owners of the servient tenement
and their successors in title. The high court found that the servitude was a
personal servitude of usus and granted all the relief claimed by Huntrex.

[36] The effect of the judgment of Nhlangulela AJA is that it recognises as
a praedial servitude the right to develop and maintain a garden upon a servient
tenement. As such it marks a significant development of the scope of presently
recognised praedial servitudes at common law. For reasons which we
elucidate below, the development is premised upon a misapplication of the
principles of law which govern the field of servitudes.

[37] When Ms Berzack sub-divided erf 380, Constantia, she sold part of it,
now known as erf 8478 Constantia, to Mr A G Wellens on 21 September 1983.
A servitude was embodied in the deed of transfer and subsequently registered
in her favour. The servitude, contained in clause P of the deed of transfer,
reads as follows:
‘SUBJECT FURTHER to the following conditions imposed by the Transferor in favour of
himself and his successors in title as owner of the REMAINDER of ERF 380 Constantia,
which conditions are as follows:
(a) The property hereby transferred is subject to a servitude area 20 (twenty) metres
wide, the Western boundary of which shall be parallel to the boundary marked DE
on Diagram No. 5253/1981 in favour of the Remainder of ERF 380
CONSTANTIA, held by the said Transferor, MARGOT BERZACK (born
ILLMAN) married out of community of property to Jeffrey Cyril Berzack under
Deed of Transfer No. 38631 dated 31st December 1970.
(b) The said servitude shall be subject to the following terms and conditions namely:
(i)
no wall or fence of any description shall be erected on the servitude
boundary except extension of existing type of fencing (wooden pole
fencing).
(ii)
The Seller shall have the right to plant, control, care for and renew
the existing garden situated within the servitude area more fully
described above.
(iii)
The Seller shall have full rights of access to such servitude area in
fulfilment of the rights hereby granted.
(the term SELLER shall include her Successors in Title).’

[38] When Huntrex purchased erf 8478 from Mr K W Sander in 2017, the
deed of transfer referred, in clause P, to the sale being subject to ‘the following
conditions contained in the said Deed of Transfer No. T.39935/1983 imposed
by MARGOT BERZACK in favour of herself and her successors in title as

owner of the REMAINDER OF ERF 380, CONSTANTIA’. It then recorded,
in clauses P(a) and P(b), the terms of the servitude as agreed by Ms Berzack
and Mr Wellens in 1983.

[39] Erf 380 and erf 8478 lie on an east to west line bounded along their
northern boundary by Alphen Drive and along their southern boundary by
Peter Cloete Avenue. The servitude area extends for 20 metres westward from
the westerly boundary of erf 380. One wooden fence crosses the area.

[40] This fence was the catalyst that led to this application. Because it could
not contain the dogs belonging to Mr and Ms Bain, the members of Huntrex
who reside on erf 8478, they wished to remove it and replace it with what they
called a ‘visually permeable’ fence that they had commissioned an architect
to design.

[41] Mr and Ms Bains sought Ms Berzack’s permission to remove the old
fence and construct the new fence. She refused. As a result, they began to
research the position that pertained to the servitude area. When they
discovered the extent of the right that Ms Berzack claimed – and the prejudice
it caused to Huntrex as owner – they launched the application in the high court
with the aim of rectifying the situation.

[42] In their notice of motion, they sought orders to the effect that they could
remove the fence then in place and construct a new one (prayers 1-4); that it
be declared that Ms Berzack’s servitude was only a personal servitude of usus
over erf 8478 which ceased to have effect on her death; that it was not capable
of being registered in the title deeds as a praedial servitude in favour of Ms

Berzack and her successors-in-title (prayers 4-7); and that the Master – the
second respondent, who took no part in the proceedings in the high court or
in this court – be directed to rectify the deed of transfer (prayer 8).

[43] The central issue in this application for leave to appeal is what the true
nature of the servitude is. This involves the interpretation of the servitude-
creating instrument. But, as van der Walt has said, the interpretation of a
servitude created by the juristic act of the parties, as opposed to legislation or
the common law, is not simply a matter of ascertaining the intention of the
parties through giving meaning to the words that they chose. In some
instances, ‘the law will override the clearly stated intention of the parties to a
servitude-creating contract if the contract conflicts with certain peremptory
principles of property law’, the underlying reason being that ‘contracting
parties are not allowed to create real rights in land at will’.22

[44] Furthermore, since a servitude is a limitation on the right of ownership
of land, the common law recognises a presumption that land is free of a
servitude, unless the contrary is established.23 This presumption has three
implications. They are:24
‘Firstly, it is presumed that property (particularly land) is free of servitudes and therefore
the existence of a servitude has to be proved by the person who claims to hold it. Logically
speaking this presumption precedes interpretation of a servitude-creating contract (the
presumption is rebutted as soon as the servitude is proved) and therefore the presumption
will seldom compete with interpretation of the contract. Secondly, once the existence of a
servitude has been proved, the in favorem libertatis principle means that the contract from

22 A J van der Walt The Law of Servitudes (2016) at 189 (Van der Walt).
23 Van der Walt at 192.
24 Van der Walt at 193-194.

which the servitude originates must be interpreted strictly so as to impose the least
cumbersome burden on the servient property. In this case, the presumption gives effect to
an underlying property principle that directs that interpretation of the contract. The logic is
again that the servitude limits ownership, that ownership must be protected against
unnecessary restrictions, and that the contract must therefore be interpreted restrictively so
as to protect freedom of ownership. Thirdly, in the same vein, if the existence of a servitude
has been proved but it is unclear whether the servitude is praedial or personal, the
presumption favours a personal servitude because that usually imposes a lesser burden on
the servient land. Interpretation therefore again takes place under the guidance of a property
principle.’

[45] The approach to the interpretation of servitudes was set out
authoritatively by Innes CJ in Willoughby’s Consolidated Co Ltd v Copthall
Stores Ltd25 as follows:
‘Whether a contractual right amounts in any given case to servitude – whether it is real or
only personal – depends upon the intention of the parties to be gathered from the terms of
the contract construed in the light of the relevant circumstances. In case of doubt the
presumption will always be against a servitude, the onus is upon the person affirming the
existence of one to prove it.’

[46] The presumption that Innes CJ spoke of was described by Cloete JA in
Kruger v Joles Eiendomme (Pty) Ltd and Another26 as ‘the well-established
rule of construction that because a servitude is a limitation of ownership, it
must be accorded an interpretation which least encumbers the servient
tenement’. The rule applies not only to whether the servient tenement is
burdened with a servitude but also, if it is, to whether it is praedial or personal.
This was explained by Corbett J in Jonordon Investment (Pty) Ltd v De Aar

25 Willoughby’s Consolidated Co Ltd v Copthall Stores Ltd 1918 AD 1 at 16.
26 Kruger v Joles Eiendomme (Pty) Ltd and Another [2008] ZASCA 138; 2009 (3) SA 5 (SCA) para 8.

Drankwinkel (Edms) Bpk27 when he held that ‘where it is doubtful whether a
servitutal burden placed on land was intended to be for the benefit of another
property and, therefore, praedial and perpetual or for the benefit of a particular
person and, therefore, personal and limited in its duration, the latter
interpretation must be adopted as being the one which places the lesser burden
upon the subject-matter of the servitude’.

[47] Two observations concerning the approach to the interpretation of
servitudes are necessary. First, Nestadt J, in Lorentz v Melle and Others28
made the point that the registration of rights in land does not ipso facto ‘render
the rights of a servitutal character’ because it may have been that ‘only
personal rights were created and that registration should not have taken place’.
In other words, the nature and character of the right created must be analysed.
Secondly, the intention of the parties as expressed in their agreement has its
limits. Nestadt J, with reference to the passage cited above in the Willoughby’s
Consolidated case, expressed those limits thus:29
‘I would add that I do not read the passage and authorities quoted as meaning that the
parties’ intention (as gathered from the terms of the contract) is the sole criterion in
deciding the issue. If a contractual right is of such a nature that it is incapable of constituting
a servitude then obviously the intention of the parties (as expressed) to do so is irrelevant.’

[48] Apart from the issue of interpretation, there are limits imposed by
principles and provisions of property law that seek to restrict the unbounded
creation of praedial servitudes, given their perpetual character and their drastic

27 Jonordon Investment (Pty) Ltd v De Aar Drankwinkel (Edms) Bpk 1969 (2) SA 117 (C) at 126A-B.
28 Lorentz v Melle and Others 1978 (3) SA 1044 (T) at 1049H (Lorentz).
29 At 1050G-H.

effect of restricting the rights, powers and liberties of owners of property. One
such limit is s 66 of the Deeds Registries Act 47 of 1937. It provides:
‘No personal servitude of usufruct, usus or habitation purporting to extend beyond the
lifetime of the person in whose favour it is created shall be registered, nor may transfer or
cession of such personal servitude to any person other than the owner of the land
encumbered thereby, be registered.’

[49] We turn now to the servitude. The wording of clause P pulls, at times,
in different directions but that notwithstanding, it seems to us that the type of
servitude contemplated by the parties is nonetheless evident. It is important to
bear in mind that the character of the servitude, rather than what the parties
who created it chose to call it, is decisive.

[50] In clause P’s introductory recordal, it is stated that the servitude set out
in the remainder of the clause was ‘imposed’ by Ms Berzack in favour of
herself as owner of erf 380, and her successors in title. Clause P(a) then
identifies the servitude area, and in doing so refers to the ‘property hereby
transferred’ as being ‘subject to a servitude area’. It also identifies the property
in favour of which the servitude operates.

[51] The servitude area in favour of Ms Berzack and her successors in title
having thus been identified, clause P(b) defines the rights that the servitude
grants. The operative provisions are clauses P(b)(ii) and (iii), as clause P(b)(i)
only concerns the fence and has no bearing on the character of the servitude.
Clause P(b)(ii) defines the servitutal right that ‘the Seller’ obtained (or, in the
words of the recordal, ‘imposed’ on the owner of erf 8478) as the right to
‘plant, control, care for and renew’ the garden in the servitude area. In other

words, the servitude gave Ms Berzac the use of the servitude area in order to
garden. Clause P(b)(iii) adds little, as all it does is emphasise that Ms Berzack
and her successors in title have a right of access to the servitude area in order
to garden.

[52] The only indications that a praedial servitude was in the contemplation
of the parties are the reference to successors in title to Ms Berzack and the
identification in clause P(a) of two properties, one that is subject to a servitude
area and one in whose favour the servitude area operates. These factors must
be seen in the context of the servitude as a whole, particularly: the statement
in the recordal that it was ‘imposed’ by Ms Berzack in favour of herself and
her successors in title, as opposed to being ‘imposed’ over the servient
tenement in favour of the dominant tenement; the statement in clauses P(b)(ii)
and (iii) that ‘the Seller’ obtained the rights listed therein; and the fact that the
only purpose in referring to the two properties in clause P(a) was to identify
the servitude area.

[53] As against these limited indicators that a praedial servitude may have
been intended, there are two strong indicators that a personal servitude was
intended. First, on the first sale of erf 8478, the terms of the servitude were
‘imposed’ in favour Ms Berzack ‘as owner’ of erf 380. Secondly, the nature
of the rights in clauses P(b)(ii) and (iii) are, by their nature, personal to Ms
Berzack. They indicate that the intention of the parties was to create a personal
servitude – ‘a limited real right that imposes a burden on the servient tenement
. . . for the benefit of a particular person’30 – for no reason other than enabling

30 Du Bois (ed) Wille’s Principles of South African Law (9 ed) (2007) at 604 (Du Bois).

Ms Berzack to enjoy gardening in the servitude area. As stated above, in the
case of uncertainty, the authorities are clear: the servitude must be held to be
a personal servitude rather than a praedial servitude.

[54] We turn now to a more precise characterisation of the rights created by
clause P(b)(ii). The personal servitude of usus is defined as follows by van der
Walt:31
‘The personal servitude of use (usus, bruick in Roman-Dutch law) is similar to but narrower
than usufruct. The beneficiary of a servitude of use (referred to as a “usuary”) can, like the
usufructuary, use the property of another person, for her lifetime or for the specified term
of the servitude, for her own benefit or for the benefit of her family, provided that the
substance of the property is preserved and returned to the owner when the servitude is
terminated.’
Put in slightly different terms, the servitude of usus ‘entitles the usuary to use the usuary
property but not to appropriate its fruits’.32

[55] Ms Berzack, in her answering affidavit stated that one of the
‘unavoidable  consequences’ of her sub-dividing her property and selling part
of it had been that ‘a significant portion’ of her garden fell within the portion
that was to be sold. She wished to protect for her benefit and that of successors
in title, ‘the exclusive right to use, access and tend to that portion of the garden
by creating [a] servitude over the Huntrex property at the same time as selling
and transferring it’. When Ms Berzack’s 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 personal servitude of usus.

31 Van der Walt at 488.
32 Du Bois at 610.

[56] Van der Walt states that ‘the nature and content of a servitude’ depends
only to an extent on the intention of the parties who created it because ‘the
law will not give effect to the intention of the parties if they intended to do
something that is not possible according to the principles of property law’,
such as creating ‘a personal servitude that is transferable or perpetual’.33 As s
66 of the Deeds Registries Act prohibits the registration of a personal
servitude of usus that purports to extend beyond the lifetime of the person who
created it, Ms Berzack was not legally capable of ‘imposing’ the servitude on
the purchaser of her property in favour of herself and her successors in title.
That has the result that, irrespective of what 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 cannot be ignored. It reflects a legislative
purpose to bolster the common law impediments to the extension of perpetual
restrictions on the ownership of property. Its effect is that once a servitude
bears the hallmarks of a personal servitude, it precludes registration.

[57] We note that Nhlangulela AJA accepts that the rights created by the
registered servitude were intended to enable ‘the pursuit of Ms Berzack’s
personal pleasure or caprice’ – the essence of a personal servitude – and that
clauses P(a) and (b) confirm this.34 He concludes, however, that the
requirement of utilitas is met by the enhancement in value which accrues to
the dominant tenement, and the beneficial acquisition of a ‘view’ of the
garden. We deal with this hereunder.

33 Van der Walt at 217.
34 See para 24 of Nhlangulela AJA’s judgment.

[58] Having concluded from an interpretation of the servitude and from the
nature of the rights created, that a personal servitude of usus was, in fact,
created, we now approach the issue from a different angle. We turn now to
consider the essential requirements for the creation of a praedial servitude and
whether the servitude at issue meets those requirements. There are five general
requirements. These embody certain principles which characterise the
servitude as praedial, ie as perpetual constraints upon the rights of ownership
of the servient tenement whilst conferring real rights that attach to the
dominant tenement.35 Only two of these need be considered.

[59] The first is that the servient tenement must be capable of serving the
dominant tenement on a permanent basis, and therefore that the use made of
the servient tenement must be based on some permanent feature or attribute
of the servient land. This requirement is expressed in the principle of perpetual
cause. It was stated in Lorentz that it is ‘the essence of a praedial servitude
that it burdens the land to which it relates and that it provides some permanent
advantage to the dominant land, as distinct from serving the personal benefit
of the owner thereof’.36

[60] The advantage provided by the servient tenement to the dominant
tenement must derive from a feature or attribute of the servient tenement
which is permanent. In Lorentz,37 this was expressed in a citation from Hahlo
and Kahn38 who wrote:

35 Du Bois at 593-596.
36 Lorentz at 1049G.
37 Lorentz at 1052C.
38 Hahlo and Kahn, The Union of South Africa; The Development of its Laws and Constitution (1960) at
602.

‘The old example of the Roman law, which was duly repeated in the Romanistic literature,
was that one cannot have a praedial servitude to pluck fruit or to stroll or to have dinner on
another's land. On the other hand, the use made of the servient land must be based on some
permanent attribute or feature of it. This is expressed in the requirement of the existence of
a causa perpetua.’

[61] The second is that the servient tenement must provide some utility or
benefit to the dominant landowner, as owner, and must not merely serve that
owner’s personal pleasure or caprice.39 This requirement is embodied in the
principle of utilitas. We have already pointed to the fact that the main
judgment, correctly in our view, recognises that the servitutal rights created
by the clause in the title deed served Ms Berzack’s personal pleasure and
caprice. The servitude was created to enable her to enhance her personal
pleasure derived from gardening, rather than to exercise dominium over her
property and enjoy all the elements of that dominium.

[62] While we accept that the principle of utilitas may be met by
enhancement in value of, or the advancement of the economic, industrial or
commercial potential of a dominant tenement to which a servitude over a
servient tenement attaches,40 the enhancement must flow from the right which
is conferred by the servitude. A right of way, or a right to draw water from a
stream or to lead water over a servient tenement no doubt may facilitate the
use, and therefore value, of a dominant tenement otherwise deprived of such
services. So too, a restrictive condition imposing limitations on the right to
trade upon a servient tenement may protect the value that attaches to such

39 Du Bois at 594. See also Briers v Wilson and Others 1952 (3) SA 423 (C) at 433H-434F; Bisschop v
Stafford 1974 (3) SA 1 (A) at 11F-12A.
40 Hollman and Another v Estate Latre 1970 (3) SA 638 (A) at 644F-645B.

rights as vest in a dominant tenement. These are the types of value
enhancement envisaged as fulfilling the utilitas requirement. Non constat the
‘increased market value’ which might ensue from a beautiful garden
developed upon a servient tenement, establishes utility as required by the
common law. In any event, even if it is assumed that some market value
benefit may flow from the gardening activities of Ms Berzack, such ‘utility’
cannot alter the fact that the rights were reserved by her in pursuit of her
personal pleasure and enjoyment.

[63] The assertion by Nhlangulela AJA that additional utility is to be found
in the fact that the servitude will also ensure a view of the garden, which will
attach to the dominant tenement, merits comment. In the first instance, there
was no evidence before the court about the nature of this ‘view’. The record
contains only general assertions that the garden is directly adjacent to a pool
area on the dominant tenement and that it serves to enhance the visual
appreciation of the area. More importantly, the utility in a view, if it is to serve
as a basis for recognition of a praedial servitude, requires more than the mere
assertion of the existence of a ‘view’. The reason is this: a view lies across or
over an adjacent property. If it is to attach as of right to a dominant tenement,
it must necessarily do so by restricting the use to which the servient tenement
may be put insofar as such use would obstruct or destroy the ‘view’ across the
servient land. This difficult conundrum has been the subject of numerous
disputes before our courts, mostly in the context of challenges to the lawful

use of property which serves to ‘detract’ from the value of an adjacent,
neighbouring property.41

[64] Our law does not recognise a natural entitlement, based upon the mere
ownership of land, to enjoy a view across adjacent land. The authorities also
do not, as a general entitlement, recognise the protection of value in a property
by imposing upon the owner of adjacent land restrictions on the lawful use of
such land. The circumstances in which this may occur are not germane to this
case. The point is made to demonstrate that the ‘utility’ of a view of the garden
can, in the context of this case, serve no more than to assert the ‘value’ of the
garden itself.

[65] How would the utilitas requirement be affected if a successor in title
had no interest in gardening? Let us assume that they simply abandoned the
cultivation and care of the garden in the servitude area, allowing it to become
a rodent infested eye-sore. Could it still be said in these circumstances that the
value of the dominant tenement has been enhanced by the servitude? In our
view, the obvious answer is ‘no’. In similar vein it could not be said that the
servient tenement has continued to provide a permanent advantage or
perpetual cause to the dominant tenement in the absence of the maintenance
and renewal of the garden. This example also highlights, it seems to us, the
personal nature of the rights claimed by Ms Berzack.

41 Paola v Jeeva NO and Others 2004 (1) SA 396 (SCA); Clark v Faraday 2004 (4) SA 564 (C); Muller
NO and Others v City of Cape Town and Another 2006 (5) SA 415 (C); True Motives 84 (Pty) Ltd v Madhi
(Ethikwini Municipality as Amicus Curiae) 2009 (4) SA 153 (SCA).

[66] It must be emphasised that the permanent advantage derived from a
feature or attribute of the servient tenement is not to be confused with the
concept of utility. The requirements are interlinked, but they are not co-
extensive. In this case there is no feature or attribute of the servient tenement
which can be said to provide an advantage to the dominant tenement. The fact
that it is contiguous is of no moment. That serves only to meet the requirement
of vicinitas. There is no evidence that the portion of land used for the
development and cultivation of a garden offers some peculiar facility for the
development of such a garden. The service that the servient tenement provides
consists of no more than the space upon which a garden has been developed.
Indeed, the expedient of a servitude and the servitude area was identified in
order to circumvent area restrictions that applied to sub-divisions of land, in
terms of the applicable town planning scheme.

[67] One final point warrants emphasis, and that is the entirely subjective
and value-laden-aesthetic of what constitutes a ‘garden’ which would serve to
enhance market or economic value of the dominant tenement. The fact that
Ms Berzack may have created a garden which satisfies the sensibilities of a
particular segment of society is no basis to infer intrinsic advantage provided
by the servient tenement to the dominant tenement. This is particularly so in
the light of the fact that the ‘advantage’ conferred by the servient land
constitutes a permanent diminution of the rights of dominium exercised by the
owner of the servient tenement.

[68] In our view, for the reasons set out above, the servitutal rights conferred
by the terms of the agreement do not meet two of the essential requirements
for recognition as a praedial servitude. It is, as indicated above, no more than

a servitude of usus, which is personal to Ms Berzack. It follows that in respect
of the principal issue, namely whether the servitude is praedial or personal in
nature, and the remedial consequences that flowed therefrom, there is no
prospect of success on appeal. The high court’s conclusion is correct that
clauses P(b)(ii) and (iii) operate as a personal servitude of usus in favour of
Ms Berzack; that they will cease to have force or effect on her death; and they
are not capable of operating or being registered as a praedial servitude and
ought not to have been registered as such. The result is that paragraphs 5, 6
and 7 of the high court’s order were correctly granted. As we shall explain,
paragraph 8 – the rectification of clause P to bring it into conformity with s
66 of the Deeds Registries Act – requires limited amendment, only in relation
to the fence.

[69] As regards paragraphs 1, 2, 3 and 4 of the high court order, we agree
that no basis was established for the relief granted by the high court. These
paragraphs concern the fence, its demolition and the construction of a new
fence. Clause P(b)(i) provides that ‘no wall or fence of any description shall
be erected on the servitude boundary except extension of existing type of
fencing (wooden pole fencing)’. Simply stated, clause P(b)(i), although not a
model of the legal drafter’s art, clearly prohibits the construction of a fence
on the servitude boundary except to the extent that it is an extension of the
existing fence and is constructed of wooden poles.

[70] We can see no basis upon which clause P(b)(i) can be interpreted to
mean that the owner of the servient tenement may demolish the existing fence
and then construct a new fence on the boundary of the servitude area. That
being so, there was no basis for the granting of paragraphs 1, 2, 3 and 4 of the

order. There was also no basis for the rectification of the clause P of the deed
of transfer by deleting clause P(b)(i).  Paragraph 8 of the order will have to be
amended to that extent. As that does not qualify as substantial success, there
will be no costs order in favour of Ms Berzack in that regard.

[71] We conclude that except for paragraphs 1, 2, 3 and 4 of the order of the
high court, which deal with the fence, and the deletion of clause P(b)(i) in the
rectified servitude, which also relates to the fence, there are no reasonable
prospects of success on appeal. We would grant leave to appeal in relation to
those paragraphs, as well as paragraph 10 which deals with costs, uphold the
appeal and set aside those paragraphs of the order of the high court. For the
rest, we would dismiss the application for leave to appeal with costs, including
the costs of two counsel. It would, in the light of Ms Berzack’s partial success
be necessary to re-visit the costs order of the high court.

[72] We would accordingly make the following order.
Leave to appeal is granted in respect of paragraphs 1, 2, 3, 4, 8 and 10
of the high court’s order.
The appeal against paragraphs 1, 2, 3 and 4 of the high court’s order is
upheld with costs, including the costs of two counsel.
Paragraphs 1, 2, 3 and 4 of the high court’s order are set aide and
replaced with the following order:
‘Prayers 1, 2, 3 and 4 of the notice of motion are dismissed with costs,
including the costs of two counsel.’
The appeal against paragraph 8 of the high court’s order is upheld to
the limited extent set out in paragraph 5 below.

Paragraph 8 of the high court’s order is amended by the insertion in the
rectified clause P of the deed of transfer, at clause P(b)(i), of the following
words:
‘No wall or fence of any description shall be erected on the servitude boundary
except extension of existing type of fencing (wooden pole fencing)’.
The application for leave to appeal is otherwise dismissed with costs
including the costs of two counsel.

____________________
C PLASKET
JUDGE OF APPEAL

_____________________
G GOOSEN
ACTING JUDGE OF APPEAL

Appearances:

For appellant:

J G Dickerson SC (with S G Fuller)
Instructed by:

Dorrington Jessop Incorporated, Cape Town
Webbers Attorneys, Bloemfontein

For first respondent:

S P Rosenberg SC (with T Tyler)
Instructed by:

Lamprecht Attorneys, Cape Town

Symington De Kok, Bloemfontein

For the second respondent:
Abides the decision of the Court

For the third respondent:
Abides the decision of the Court

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From: The Registrar, Supreme Court of Appeal
Date:
21 February 2023
Status: Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal.
Margot Berzack v Huntrex 277 (Case no 210/2021) [2023] ZASCA 17 (21 February 2023)

Today, the Supreme Court of Appeal (SCA) upheld an appeal by Ms Berzack against a decision of the
Western Cape Division of the High Court , Cape Town ( high court) which found in favour of Huntrex
277 (Pty) Ltd (Huntrex) that a servitude registered in the title deed of the Huntrex was a servitude of
usus. The case came before the SCA as an application for leave to appeal which had been referred
for oral argument. The SCA granted leave to appeal and upheld the appeal on the merits.
The servitude was created by agreement which was concluded at the time that Ms Berzack
subdivided and sold off a portion of her property. It allowed Ms Berzack to develop and maintain a
garden on a 20 m wide portion of the subdivided erf. It was registered in the title deeds in favour of
the seller as owner (of the Berzack property) and her successors in title.
A dispute arose between Ms Berzack and Huntrex (the successors in title to the subdivided property)
relating to a wooden pole fence erected across the servitude area. Huntrex brought an application in
the high court to declare that the servitude was personal and not capable of registration in terms of
the Deeds Regiastries Act. Ms Berzack brought a counter-application seeking orders declaring that
the rights were praedial and that the title deed be rectified to this effect, alternatively that the rights
be conferred by operation of acquisitive prescription.
The high court found that the servitude was one of usus and therefore personal in nature. It held
that the registration of the servitude was prohibited by section 66 of the Deeds Registries Act 47 of
1937 (Deeds Registries Act). It dismissed the counter application in which Ms Berzack sought
declaratory relief to the effect that the servitude was praedial.

The SCA, (Nhlangulela AJA, with Petse AP and Molemela JA concurring), granted leave to appeal
against the whole of the order of the high court and determined the appeal. It held the clause in the
title deed was erroneously interpreted to mean a personal servitude of usus rather than a praedial
servitude. Registration therefore did not offend the provisions of section 66 of the Deeds Registries
Act.

The SCA therefore set aside the high court’s orders and substituted them with an order dismissing
the application (brought by Huntrex) with costs.

The minority in a joint judgment by y Plasket JA and Goosen AJA, held that on the primary issue,
namely whether the servitude was personal or praedial, there was no reasonable prospect of
success on appeal and leave to appeal ought to be refused. The minority accepted that leave to
appeal ought to be granted in relation to certain orders granted by the high court and that the
appeal should succeed to the limited extent that those orders be set aside. They held, however, that
the high court was correct to find that the servitude was one of usus and that it ought not to have
been registered as extending beyond the life time of Ms Berzack. The minority found that the
servitude, conferring upon Ms Berzack an entitlement to garden on the servient property, did not
meet the requirements for recognition as a praedial servitude.