THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 401/2021

In the matter between:

N’WANDLAMHARHI COMMUNAL
PROPERTY ASSOCIATION
FIRST APPELLANT

MALAMALA GAME RESERVE (PTY) LTD
SECOND APPELLANT

and

HELEN LYNNE WESTCOTT
FIRST RESPONDENT

CAROLINE CLARE CORMACK
SECOND RESPONDENT

RODRICK ANTON BEAUMONT
THIRD RESPONDENT

MICHAEL HEMINGFORD BEAUMONT
FOURTH RESPONDENT

Neutral citation:
N’Wandlamharhi Communal Property Association and Another
v Westcott and Others (401/2021) [2022] ZASCA 129 (3 October 2022)
Coram:
VAN DER MERWE and MOTHLE JJA and MUSI, KGOELE and
WEINER AJJA
Heard:
22 August 2022
Delivered:
3 October 2022
Summary:
Property – servitude – rights of access to and occupation of immovable
properties – rights constitute subtraction from dominium of land – no intention on part
of landowners granting rights to bind successors in title – no rights to registration of
servitudes created.

ORDER

On appeal from: Mpumalanga Division of the High Court, Mbombela, (Mashile J,
Mphahlele J and Greyling Coetzer AJ concurring), sitting as court of appeal:

1 The appeal is upheld with costs, including the costs of two counsel.
2 The order of the full court is set aside and replaced with an order dismissing the
appeal with costs, including the costs of two counsel.

JUDGMENT

Van der Merwe JA (Mothle JA and Musi, Kgoele and Weiner AJJA concurring)
[1] The first appellant, the N’Wandlamharhi Communal Property Association, is the
registered owner of a number of immovable properties that comprise the MalaMala
Private Game Reserve (MalaMala) in Mpumalanga. These properties include portion 1
of Charleston 378 KU (Charleston South) and the remaining extent of Charleston 378
KU (Charleston North). The second appellant, MalaMala Game Reserve (Pty) Ltd,
operates MalaMala in terms of a lease agreement with the first appellant. The first
respondent, Ms Helen Lynne Westcott, and the second respondent, Ms Caroline Clare
Cormack, are sisters. The third respondent, Mr Rodrick Anton Beaumont, and the fourth
respondent, Mr Michael Hemingford Beaumont, are brothers and first cousins of the
first and second respondents. Broadly stated, the question in the appeal is whether the
respondents have rights of access to and occupation of Charleston South and
Charleston North (collectively the Charleston properties) that are enforceable against
the appellants. The question must be answered in the light of the background that
follows.

Background
[2] The original farm Charleston belonged to Mr Frans Unger, the maternal
grandfather of the respondents. During 1958 the original farm was subdivided into two
equal portions, each approximately 1801 hectares in extent, thereby constituting the
Charleston properties. Their common boundary is on the southern side of Charleston
North and on the northern side of Charleston South. Each adjoins the Kruger National
Park on the western side thereof. This boundary is not fenced. The Sand River
traverses both the Charleston properties roughly from north to south.

[3] Ms Nan Yvonne Trollip (previously Westcott) and Ms Phyllis Marie Beaumont
were daughters of Mr Unger. Ms Trollip was the mother of the first and second
respondents and Ms Beaumont the mother of the third and fourth respondents. During
the mid-1950’s Ms Trollip established a camp on the western bank of the Sand River,
on what is now Charleston South (the Charleston South Camp). During or about 1956,
Ms Beaumont and her husband similarly built a camp on the western bank of the Sand
River, on what is now Charleston North (the Charleston North Camp). Over the years
various changes and additions were made to each camp. The locations of the camps
provided unique opportunities for the appreciation and enjoyment of nature. Both the
Trollip and Beaumont families were committed to nature conservation and, as one
could imagine, they had many memorable and exciting times at the respective camps.

[4] During 1964 Ms Trollip became the registered owner of the Charleston South
and Ms Beaumont that of Charleston North. From January 1965 the Charleston
properties formed part of a proclaimed reserve named Sabi Sand Wildtuin, as did the
other properties that presently constitute MalaMala. Since July 2006, however,
MalaMala was managed as an autonomous private game reserve within the proclaimed
reserve. It is a highly sought-after eco-tourism destination.

[5] By 1986 Ms Trollip had caused the incorporation of a company named
Charleston Farm (Pty) Ltd. All 300 of the issued shares in the company belonged to

her. On 26 February 1986, Ms Trollip entered into a sale of shares agreement with
Rattray Reserves (Pty) Ltd (Rattray Reserves), in terms of which she sold and
transferred two thirds of the shares in Charleston Farm (Pty) Ltd to Rattray Reserves.
The sale of shares agreement was subject to the execution of, first, an agreement of
sale between Ms Trollip and Charleston Farm (Pty) Ltd for the sale of Charleston South
and, second, a shareholders agreement between Ms Trollip and Rattray Reserves in
respect of their shareholding in Charleston Farm (Pty) Ltd.

[6] The first suspensive condition was duly fulfilled and Charleston South
transferred to Charleston Farm (Pty) Ltd. The envisaged shareholders agreement was
also entered into on 26 February 1986. Ms Trollip signed the shareholders agreement
in her personal capacity as well as in the capacity as duly authorised representative of
Charleston Farm (Pty) Ltd. The upshot of all this was that Ms Trollip (one third) and
Rattray Reserves (two thirds) became the shareholders in Charleston Farm (Pty) Ltd,
which owned Charleston South.

[7] By 1986 Ms Beaumont had created a family trust, the Spulula Family Trust. The
Spulula Family Trust held all the issued shares in a company called Charleston North
(Pty) Ltd. On 8 September 1986, the Spulula Family Trust also entered into a sale of
shares agreement and shareholders agreement with Rattray Reserves. The terms and
conditions of these agreements were virtually identical to those of the agreements
between Ms Trollip and Rattray Reserves. The sale of shares agreement was also
signed by Ms Beaumont in her personal capacity, as well as by an authorised
representative of Charleston North (Pty) Ltd. The execution of these agreements
created the similar position that the Spulula Family Trust (one third) and Rattray
Reserves (two thirds) held the shares in Charleston North (Pty) Ltd, which company
was the registered owner of Charleston North.

[8] These shareholders agreements are central to the determination of the matter
and I shall make reference to their material terms shortly. It is necessary, however, to
set out the subsequent changes effected to the shareholding in the two Charleston

companies. During 1987, Rattray Reserves transferred its shares in the Charleston
companies to a close corporation, MalaMala Ranch CC. That close corporation was
later converted into a company named MalaMala Ranch (Pty) Ltd. As was envisaged
in the shareholders agreement between Ms Trollip and Rattray Reserves, the former
transferred her one third shareholding in Charleston Farm (Pty) Ltd to the Nan Trollip
Trust during 1993.

[9] Clause 9 of each shareholders agreement placed limitations on the disposal of
shares in the Charleston companies to third parties. In essence, clause 9.2 provided
that a shareholder may only dispose of shares to a third party if all the shares held by
it are disposed of and the other shareholder did not accept an offer to purchase the
shares at the same price and on the same terms than those offered by the third party.
Clause 9.4 set out a discrete procedure whereby a shareholder could give an option to
the other shareholder to either sell its shares or to purchase the offering shareholder’s
shares at a consideration per share mentioned in the notice. The shareholder receiving
the notice could then either buy or sell at the price contained in the notice.

[10] On 13 September 2010, the Nan Trollip Trust and the Spulula Family Trust each
gave notice to MalaMala Ranch (Pty) Ltd in terms of clause 9.4 of the respective
shareholders agreements. By then both Ms Trollip and Ms Beaumont had passed
away. Contrary to the expectations of the respondents, MalaMala Ranch (Pty) Ltd
opted to purchase the shares in the Charleston companies rather than to sell its shares.
As a result, the respective minority shareholdings in the Charleston companies were
sold to MalaMala Ranch (Pty) Ltd and it became the sole shareholder of both.

[11] In the meantime, a claim for the restitution of rights under the Restitution of
Land Rights Act 22 of 1994 was instituted in respect of the properties comprising
MalaMala. The owners of the properties, as well as the respondents, disputed the
claim. Eventually the Minister of Rural Development and Land Reform decided to
restore these properties to the claimant community and made State funds available for
the purchase of the land.

[12] This led to a sale agreement in terms of which the MalaMala land was sold to
the Department of Rural Development and Land Reform. The Department transferred
the properties to the first appellant on 30 October 2013. Thus the first appellant became
the registered owner of the properties comprising MalaMala, including of course the
Charleston properties. The agreement in terms of which the second appellant conducts
the operation of MalaMala, was entered into on 1 March 2016.

Terms of the shareholders agreements
[13] In terms of the shareholders agreement in respect of Charleston Farm (Pty) Ltd,
‘NT’ was stated to ‘mean and include Nan Yvonne Trollip and her Successors in Title’.
‘NT’s Successors in Title’ referred to Ms Trollip’s husband as well as to the first and
second respondents. In the shareholders agreement pertaining to Charleston North
(Pty) Ltd, ‘PB’ similarly meant Ms Beaumont and her ‘Successors in Title’, which
referred to the third and fourth respondents. The expression ‘the Trust’ referred to the
Spulula Family Trust. For convenience I proceed to reproduce the material terms of the
Charleston North (Pty) Ltd shareholders agreement. As I have said, the other
shareholders agreement contained corresponding provisions regarding Ms Trollip, the
first and second respondents, Charleston Farm (Pty) Ltd, Charleston South and the
Nan Trollip Trust.

[14] The agreement defined ‘Viewing Rights’ in the following terms:
‘[S]hall mean the right of access to and egress from and of traversing Charleston North, whether
on foot or in a vehicle or in or on any other form of transport, for the purpose of viewing fauna
and flora, including the right to exercise such other rights in regard to Charleston North as shall
be implicit in or incidental to the viewing of fauna and flora . . .’
The definition of ‘Affiliate’ included a holding company of Rattray Reserves, a subsidiary
of Rattray Reserves and a company in which the managing director of Rattray
Reserves directly or indirectly held a controlling interest. MalaMala Ranch (Pty) Ltd was
an ‘Affiliate’.

[15] Clauses 2.1 and 2.2 recorded that Charleston North (Pty) Ltd had purchased
Charleston North from the Spulula Family Trust and that the latter had sold two thirds
of the shares in that company to Rattray Reserves. Clause 2.3 proceeded to say:
‘The Parties wish to record their respective rights and obligations as shareholders in the
Company and to provide for the creation and entrenchment of the right to use and occupy
Charleston North Camp and the Viewing Rights in favour of PB.’

[16] Clause 11.1 provided:
’11.1
PB shall have:
11.1.1
the sole and exclusive use and occupation of Charleston North Camp;
11.1.2
Viewing Rights;
11.1.3
the right to bring guests, who shall at all times be accompanied by PB, and not
exceeding 16 (sixteen) in number, upon Charleston North in the normal course
of the exercise of the rights hereby granted to PB provided that no
consideration shall be given to or received by PB for the benefits enjoyed by
such guests, provided further that PB shall procure that such guests shall
abide by the provisions of this agreement; . . .’
I refer to these rights as the occupation and viewing rights.

[17] In terms of clause 11.2, Rattray Reserves undertook obligations to facilitate the
exercise of the occupation and viewing rights through Charleston North (Pty) Ltd or an
‘Affiliate’. These were to supervise and maintain the Charleston North Camp and to
make a four-wheel drive vehicle and three servants available to the occupants of the
camp. Clause 11.3 provided for rights similar to the ‘Viewing Rights’ to Ms Beaumont
(not ‘PB’ as defined) in respect of other properties owned by or under the control of
Rattray Reserves or an ‘Affiliate’.

[18] Clause 11.4 read:
‘To the extent that the Viewing Rights and/or the rights hereby granted to PB in respect of
Charleston North Camp are or may at any time in the future become registrable against the
title deeds of the Company over Charleston North, Rattray Reserves shall, upon request in
writing by PB addressed to the Company, and at the cost of PB, procure the adoption of all

such resolutions, the granting of all such powers, the signature and lodgement of all such
applications and the taking of all such other steps as may be necessary or expedient for the
purpose of procuring registration of such rights in the appropriated Deeds Registry.’

[19] Clause 11.6 provided:
‘Should PB or the Trust sell or otherwise dispose of the Shares held by PB or the Trust, to any
person other than Rattray Reserves or an Affiliate, the rights created in terms of clauses 11.1,
11.2 and 11.3 shall terminate with effect from the date of such sale. Should, however, the
Shares be sold, or otherwise disposed of to Rattray Reserves or an Affiliate, the said rights
shall endure until the death of the last dying of PB’s Successors in Title.’

Litigation History
[20] Despite the developments set out above, the respondents continued to exercise
the occupation and viewing rights. Soon after the second appellant took control of the
management of MalaMala, however, it took the stance that the occupation and viewing
rights had ceased to exist. It accordingly notified the respondents that they would not
be granted access to MalaMala after 31 July 2016. That sparked the litigation that led
to the present appeal.

[21] The respondents launched an application in the Mpumalanga Division of the
High Court, Mbombela, for the enforcement of the occupation and viewing rights. Their
principal contention was that clause 11.1 read with clause 11.6 of the shareholders
agreements afforded them the right to the registration of servitudes against the title
deeds of the Charleston properties. In the alternative, on the basis that the occupation
and viewing rights constituted mere personal rights, their case was that these rights
were enforceable against the appellants through the doctrine of notice.

[22] The appellants’ main argument was that a proper interpretation of the
shareholders agreements indicated that no servitudal rights had been granted. Their
alternative contention was that the provisions of s 3 of the Subdivision of Agricultural
Land Act 70 of 1970 rendered the occupation and viewing rights invalid and

unenforceable. The premise of the argument was that the Charleston properties
constituted agricultural land. The appellants proceeded to contend that the rights to ‘the
sole and exclusive use and occupation’ of the approximately 0,5 hectares upon which
each of the two camps were situated, amounted to a subdivision of agricultural land
without the required written consent of the Minister of Agriculture.

[23] The matter came before Legodi JP. He rejected the argument that the
provisions of the Subdivision of Agricultural Land Act were applicable, on the basis that
the grant of the occupation and viewing rights did not amount to a subdivision of land.
He held, however, that the occupation and viewing rights were neither servitudal rights
nor enforceable against the appellants under the doctrine of notice. He consequently
dismissed the application of the respondents with costs, such costs to include the costs
of two counsel.

[24] With the leave of this court, the respondents appealed to the full court of that
division. That court (Mashile J, Mphahlele J and Greyling Coetzer AJ concurring)
upheld the appeal. It made short shrift of the argument based on the Subdivision of
Agricultural Land Act. It framed its conclusion on the enforcement of the occupation
and viewing rights in these terms:
‘A simple fact is, however, that the rights have always been registrable. Whether the rights
were registrable or not would be rendered irrelevant in an instance where the shares were sold
to a party outside of the Rattray Group. Now that they have been acquired by a company within
the Group, the Appellants can exercise their choice to register them.’
And:
‘The conclusion on this question ought to be that the rights of the Appellants have always been
enforceable regardless of whether or not they were in addition, registrable.’
It proceeded to grant the order sought by the respondents and directed the appellants,
jointly and severally, to pay the costs of the application and of the appeal, including the
costs of two counsel. The present appeal is with the special leave of this court.

Rights to registration of servitudes
[25] In the light of what I have said, the first issue is whether the respondents were
afforded servitudal rights. A servitude is a real right to use the property of another in a
particular manner, irrespective of a change in ownership of that property. The right may
be attached to a particular dominant tenement (praedial servitude) or to a particular
person (personal servitude) and comes into existence upon its registration in the Deeds
Office, save where the servitude is acquired by prescription. See Cillie v Geldenhuys
[2008] ZASCA 54; [2008] All SA 507 (SCA); 2009 (2) SA 325 (SCA) para 13 and A J
Van der Walt The Law of Servitudes 1 ed (2016) at 322.

[26] The personal right to claim the registration of the servitude (ius in personam ad
rem acquirendam) may of course arise from an agreement. Such a right would exist
where on a proper interpretation of the agreement, two requirements are met, namely:
(a)
The person who created the right intended to bind the present owner of the
property as well as successors in title; and
(b)
The right resulted in a subtraction from the dominium of the land against which
it is registered.
See Ethekwini Municipality v Mounthaven (Pty) Ltd [2018] ZACC 43; 2019 (4) SA 394
(CC) para 11 and 27 Lawsa 2 ed paras 63-65. There is a presumption against the
creation of a servitude and in cases of doubt or ambiguity the court will adopt the
construction that least encumbers the servient tenement. See Willoughby’s
Consolidated Co Ltd v Copthall Stores Ltd 1918 AD 1 at 16, Kruger v Joles Eiendom
(Pty) Ltd and Another [2008] ZASCA 138; [2009] 1 All SA 553 (SCA); 2009 (3) SA 5
(SCA) para 8 and 24 Lawsa 2 ed para 543.

[27] Under the doctrine of notice, the personal right to claim the registration of a
servitude is also enforceable against a person who bears knowledge thereof. See
Bowring NO v Vrededorp Properties CC and Another 2007 (5) SA 391 paras 7-8.
Where an interpretation of the agreement in accordance with the ordinary well-known
principles of construction leads to the conclusion that any one of the requirements
above is absent, the right to use the property is not registerable. If the intention is only

to bind the present owner, the right is not registrable even though it amounts to a
subtraction from the dominium of the property concerned. In this regard s 63(1) of the
Deeds Registries Act 47 of 1937 provides:
‘No deed, or condition in a deed, purporting to create or embodying any personal right, and no
condition which does not restrict the exercise of any right of ownership in respect of immovable
property, shall be capable of registration: Provided that a deed containing such a condition as
aforesaid may be registered if, in the opinion of the registrar, such condition is complimentary
or otherwise ancillary to a registrable condition or right contained or conferred in such deed.’

[28] At the outset of the analysis it is necessary to place the references in the
shareholders agreements to the successors in title of Ms Trollip and Ms Beaumont
respectively in proper perspective. It is clear from their context that these were not
references to successors in title in the ordinary meaning thereof. They were mere
convenient labels to refer to the persons who were also offered the occupation and
viewing rights, but were not parties to the shareholders agreements, such as the
respondents. I do accept, however, that the respondents duly accepted the benefits
that had so been offered to them by agreement between the parties to the shareholders
agreements.

[29] The appellants correctly conceded that the Charleston companies were parties
to the respective shareholders agreements. In my view, the occupation and viewing
rights constituted subtraction from the dominium of the respective Charleston
properties. It is common cause that at all relevant times the appellants had knowledge
of the respondents’ claims to the occupation and viewing rights. It follows that in the
event of a finding that the Charleston companies intended their respective successors
in title to be bound to the occupation and viewing rights, they would be enforceable
against the appellants. As I shall show, however, this is where the respondents’ case
flounders.

[30] I find no indication in the shareholders agreements of an intention on the part
of the Charleston companies to bind their respective successors in title. In this regard

the respondents relied on clauses 2.3 and 11.4 of the shareholders agreements, quoted
above. But these provisions are neutral and do not support the respondents’ argument.
Clause 11.4, in particular, clearly stated that to the extent that the occupation and
viewing rights ‘are or may at any time in the future become registrable against the title
deeds’, Rattray Reserves would be obliged to take the steps necessary to effect such
registration.

[31] In addition, the arrangements between the respective shareholders in terms of
the shareholders agreements point the other way. In this regard the appellants referred
to two categories of entrenchments in the shareholders agreements. The first category
imposed limitations on the disposal of the respective Charleston properties. The
shareholders agreements provided: that the minority shareholder would be entitled to
have a director on the board of directors; that in the absence of that director there would
not be a quorum; and that the respective Charleston properties could only be sold or
disposed of with the unanimous approval of the board of directors. The parties to the
shareholders agreements thus contemplated that the Charleston properties might be
disposed of, but made no provision for the survival of the occupation and viewing rights
in such an event.

[32] The second category imposed limitations on the sale of the shares in the
Charleston companies to third parties, subject to detailed exceptions. This takes one
to clause 11.6 of the shareholders agreements. It will be recalled that it explicitly stated
that should the minority shareholding be sold to anyone other than Rattray Reserves
or an ‘Affiliate’, the occupation and viewing rights would terminate.

[33] Thus, in terms of the shareholders agreements the occupation and viewing
rights would not survive the disposal of the Charleston properties or even the sale of
the minority shareholding in a Charleston company to a third party. This is inconsistent
with an intention on the part of the Charleston companies to bind their successors in
title to the occupation and viewing rights. In sum, not only did the Charleston companies
not bind their successors in title, but their shareholders arranged their affairs on that

understanding. I therefore conclude that the respondents were not afforded the right to
have the occupation and viewing rights registered against the title deeds of the
Charleston properties and that they in fact terminated when the Charleston properties
were sold.

Alternative arguments
[34] As I have said, the respondents argued in the alternative that even if they had
no rights to obtain the registration of servitudes, the occupation and viewing rights
should be enforced against the appellants under the doctrine of notice. It has been said
that this anomalous doctrine is a purely equitable one, aimed at tempering the strict
precedence of real rights over personal rights in appropriate circumstances. See
Meridian Bay Restaurant (Pty) Ltd and Others v Mitchell SC NO [2011] ZASCA 30;
2011 (4) SA 1 (SCA) para 13. In terms of the doctrine, limited real effect is given to a
personal right against those who have knowledge of the right. The respondents
contended that, in the circumstances, their mere personal rights against the Charleston
companies were protectable under the doctrine of notice by analogy or judgments such
as Associated South African Bakeries (Pty) Ltd v Oryx & Vereinigte Bäckereien (Pty)
Ltd en Andere 1982 (3) SA 893 (A) (right of pre-emption) and Cussons en Andere v
Kroon 2001 (4) SA 833 (SCA) (right of partner to consent to alienation of partnership
asset).

[35] In Cussons v Kroon para 12, Streicher JA held that the underlying reason for
the enforcement in Associated Bakeries of the right of pre-emption against the person
who had knowledge thereof, was that the latter wrongfully interfered with the personal
right of the former. This appears to me to be a sound and principled basis upon which
the future application of the doctrine of notice to mere personal rights should be
considered. See also Meridian Bay paras 19-21. But this issue does not arise in this
case, for the simple reason that I have held that the occupation and viewing rights had
terminated when the Charleston companies disposed of the Charleston properties.
Nothing remained that could be protected under the doctrine of notice.

[36] In the circumstances it is unnecessary to consider the argument based on the
Subdivision of Agricultural Land Act. It follows that the appeal must succeed and that
the order of Legodi JP should be reinstated. Costs should follow the result of both
appeals. It was not in dispute that the employment of two counsel was reasonable.

[37] For these reasons the following order is issued:

The appeal is upheld with costs, including the costs of two counsel.
The order of the full court is set aside and replaced with an order dismissing the
appeal with costs, including the costs of two counsel.

_______________________
C H G VAN DER MERWE
JUDGE OF APPEAL

Appearances:

For appellants:

G L Grobler SC and H S Havenga SC
Instructed by:

Larson Falconer Hassan Parsee Inc, Umhlanga Rocks

Symington & De Kok, Bloemfontein.

For respondents:

M du P van der Nest SC and D A Turner

Instructed by:

Bowman Gilfillan Inc, Johannesburg

McIntyre & Van der Post, Bloemfontein.

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:

3 OCTOBER 2022
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

N’Wandlamharhi Communal Property Association and Another v Westcott and Others (401/2021)
[2022] ZASCA 129 (3 October 2022)

Today the Supreme Court of Appeal (SCA) handed down judgment upholding the appeal against the
decision of the full court of the Mpumalanga Division of the High Court, Mbombela and reinstated the
order of the court of first instance.

The issue before the SCA was whether the respondents had rights of access to and occupation of
Charleston South and Charleston North (collectively the Charleston properties) that were enforceable
against the appellants.

The first appellant, the N’Wandlamharhi Communal Property Association, is the registered owner of a
number of immovable properties that comprise the MalaMala Private Game Reserve (MalaMala) in
Mpumalanga. These properties include portion 1 of Charleston 378 KU (Charleston South) and the
remaining extent of Charleston 378 KU (Charleston North). The second appellant, MalaMala Game
Reserve (Pty) Ltd, operates MalaMala in terms of a lease agreement with the first appellant. The first
respondent, Ms Helen Lynne Westcott, and the second respondent, Ms Caroline Clare Cormack, are
sisters. The third respondent, Mr Rodrick Anton Beaumont, and the fourth respondent, Mr Michael
Hemingford Beaumont, are brothers and first cousins of the first and second respondent.

The original farm Charleston belonged to Mr Frans Unger. During 1958 the original farm was subdivided
into two equal portions, each approximately 1801 hectares in extent, thereby constituting the Charleston
properties. Ms Nan Yvonne Trollip (previously Westcott) and Ms Phyllis Marie Beaumont were
daughters of Mr Unger. Ms Trollip was the mother of the first and second respondent and Ms Beaumont
the mother of the third and fourth respondent. During the mid-1950’s Ms Trollip established a camp on
the western bank of the Sand River, on what is now Charleston South (the Charleston South Camp).
At about the same time, Ms Beaumont established a similar camp, on what is now Charleston North
(the Charleston North Camp). During 1964 Ms Trollip became the registered owner of the Charleston
South and Ms Beaumont that of Charleston North.

By 1986 Ms Trollip had caused the incorporation of a company named Charleston Farm (Pty) Ltd. All
300 of the issued shares in the company belonged to her. On 26 February 1986, Ms Trollip entered into
a sale of shares agreement with Rattray Reserves (Pty) Ltd (Rattray Reserves), in terms of which she
sold and transferred two thirds of the shares in Charleston Farm (Pty) Ltd to Rattray Reserves. The sale
of shares agreement was subject to the execution of, first, an agreement of sale between Ms Trollip
and Charleston Farm (Pty) Ltd for the sale of Charleston South and, second, a shareholders agreement
between Ms Trollip and Rattray Reserves in respect of their shareholding in Charleston Farm (Pty) Ltd.

By 1986 Ms Beaumont had created a family trust, the Spulula Family Trust. The Spulula Family Trust
held all the issued shares in a company called Charleston North (Pty) Ltd. On 8 September 1986, the
Spulula Family Trust also entered into a sale of shares agreement and shareholders agreement with

Rattray Reserves. The terms and conditions of these agreements were virtually identical to those of the
agreements between Ms Trollip and Rattray Reserves. The shareholders agreements provided for
occupation and viewing rights of Ms Trollip, Ms Beaumont and the respondents in respect of the
Charleston South Camp and the Charleston North Camp respectively.

During 1987, Rattray Reserves transferred its shares in the Charleston companies to a close
corporation, MalaMala Ranch CC. That close corporation was later converted into a company named
MalaMala Ranch (Pty) Ltd. As was envisaged in the shareholders agreement between Ms Trollip and
Rattray Reserves, the former transferred her one third shareholding in Charleston Farm (Pty) Ltd to the
Nan Trollip Trust during 1993.

Clause 9 of each shareholders agreement placed limitations on the disposal of shares in the Charleston
companies to third parties. In essence, clause 9.2 provided that a shareholder may only dispose of
shares to a third party if all the shares held by it are disposed of and the other shareholder did not
accept an offer to purchase the shares at the same price and on the same terms than those offered by
the third party.

In the meantime, a claim for the restitution of rights under the Restitution of Land Rights Act 22 of 1994
was instituted in respect of the properties comprising MalaMala. Eventually the Minister of Rural
Development and Land Reform decided to restore these properties to the claimant community and
made State funds available for the purchase of the land. The Department transferred the properties to
the first appellant on 30 October 2013. Thus the first appellant became the registered owner of the
properties comprising MalaMala, including of course the Charleston properties.

Soon after the second appellant took control of the management of MalaMala, however, it took the
stance that the occupation and viewing rights had ceased to exist. It accordingly notified the
respondents that they would not be granted access to MalaMala after 31 July 2016. That sparked the
litigation that led to the present appeal.

The respondents launched an application in the high court for the enforcement of the occupation and
viewing rights. Their principal contention was that clause 11.1 read with clause 11.6 of the shareholders
agreements afforded them the right to the registration of servitudes against the title deeds of the
Charleston properties

The SCA held that the shareholders agreements evinced no retention on the part of the Charleston
companies to bind their successors in title to the occupation and viewing rights. The SCA also found
that the shareholders agreements made provision for two categories of entrenchments. The first
category imposed limitations on the disposal of the respective Charleston properties. The SCA found
that parties to the shareholders agreements contemplated that the Charleston properties might be
disposed of, but made no provision for the survival of the occupation and viewing rights in such an
event. The second category imposed limitations on the sale of the shares in the Charleston companies
to third parties, subject to detailed exceptions. Clause 11.6 explicitly stated that should the minority
shareholding be sold to anyone other than Rattray Reserves or an ‘Affiliate’, the occupation and viewing
rights would terminate. The SCA therefore concluded that the respondents were not afforded the right
to have the occupation and viewing rights registered against the title deeds of the Charleston properties
and that they in fact terminated when the Charleston properties were sold.

In the alternative, the respondents argued that even if they had no rights to obtain the registration of
servitudes, the occupation and viewing rights should be enforced against the appellants under the
doctrine of notice. The SCA held that for the simple reason that it held that the occupation and viewing
rights had terminated when the Charleston companies disposed of the Charleston properties, nothing
remained that could be protected under the doctrine of notice.

~~~~ends~~~~