THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 1075/2020

In the matter between:

EDEN CRESCENT SHARE BLOCK LTD
Applicant

and

OLIVE MARKETING CC
First Respondent

ETHEKWINI MUNICIPALITY
Second Respondent

and

SHEPSTONE & WYLIE
Third Party

Neutral citation:
Eden Crescent Share Block Ltd v Olive Marketing CC and Others
(1075/2020) [2022] ZASCA 177 (9 December 2022)
Coram:
Dambuza ADP, Molemela and Plasket JJA and Basson and Siwendu
AJJA
Heard:
9 November 2022
Delivered:
This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal website
and release to SAFLII. The date and time for hand-down is deemed to be 11:00 am
on 9 December 2022.
Summary:
Application for leave to appeal in terms of s 17(2)(d) of the Superior
Courts Act 10 of 2013 – validity of servitude – whether servitude invalid on account of
vagueness – whether general or specific servitude – whether special procedures

envisaged by s 8(1)(c) of the Share Block Control Act 59 of 1980 and s 4B of the
Housing Development Schemes for Retired Persons Act 65 of 1988 required for
validity of servitude.

ORDER

On appeal from: KwaZulu-Natal Division of the High Court, Durban (Moodley J sitting
as court of first instance):
Eden Crescent Share Block Ltd’s (Eden) application for leave to appeal is
dismissed.
Eden is directed to pay the costs of Olive Marketing CC (Olive), including the
costs of two counsel where employed.
Olive’s application for leave to appeal against paragraph 6 of the high court’s
order is dismissed.
Olive is directed to pay the costs of the Ethekwini Municipality (Ethekwini),
including the costs of two counsel where employed.
Ethekwini’s application for leave to appeal against paragraph 7 of the high
court’s order is dismissed.
Ethekwini is directed to pay the costs of Shepstone & Wylie, including the costs
of two counsel where employed.

JUDGMENT

Plasket JA (Dambuza ADP, Molemela JA and Basson and Siwendu AJJA
concurring)

[1] In application proceedings subsequently referred to trial in the KwaZulu-Natal
Division of the High Court, Durban, the first respondent, Olive Marketing CC (Olive)
succeeded in obtaining an order to enforce a servitude against the applicant, Eden
Crescent Share Block Ltd (Eden). Its success meant that its conditional claim for

damages against the second respondent, the Ethekwini Municipality (Ethekwini),1
joined as a defendant when the matter was referred to trial, and Ethekwini’s conditional
claim against a number of third parties, including Shepstone & Wylie, the firm of
attorneys which registered the servitude, were dismissed. Leave to appeal having
been refused by the high court, Eden petitioned this court for leave, while Olive and
Ethekwini petitioned for leave to appeal, conditionally, against the dismissal of their
claims. This court made an order referring all of the applications for leave to appeal
for oral argument in terms of s 17(2)(d) of the Superior Courts Act 10 of 2013, with the
usual rider that the parties should be prepared to address the merits if called upon to
do so.

[2] Eden owns erf 11496, Durban, while Olive owns erf 12424, Durban which
adjoins Eden’s property. I shall, unless the context otherwise requires, refer to these
properties as ‘the Eden property’ and ‘the Olive property’. Both parties purchased their
properties from Ethekwini. The deed of sale concluded by Ethekwini and Eden
provided that a parking servitude of at least 250 parking spaces would be created over
the property in favour of Olive’s property. In the deed of sale concluded by Ethekwini
and Olive, it was recorded that the property enjoyed the benefit of a parking servitude
over erf 11496. Eden has consistently refused to provide parking to Olive and has
asserted that the servitude is invalid. This dispute resulted in the proceedings in the
high court and is the subject matter of this application for leave to appeal.

[3] The contours of the dispute are fairly narrow. While Olive, Ethekwini and
Shepstone & Wylie, the only third party to participate in these proceedings, argue that
the servitude is unimpeachable, Eden asserts that it is invalid for two broad reasons.
First, it is a specific servitude that has not identified essential elements, namely the
precise number and location of the parking spaces. As this has not been agreed, the
servitude-creating agreement is inchoate, vague and unenforceable. Secondly, to the
extent that the servitude amounted to an alienation of Eden’s property, because it was
not approved in terms of the special procedures provided for in s 8(1)(c) of the Share

1 References to Ethekwini include, for the sake of convenience, its predecessor, the Durban City
Council.

Blocks Control Act 59 of 1980 (the Share Blocks Act) and s 4B of the Housing
Development Schemes for Retired Persons Act 65 of 1988 (the Retired Persons Act),
it is invalid.

Background
[4] An arrangement has been in place for over 60 years, by means of different
mechanisms, in term of which the Eden property has provided parking for people using
the Olive property. The potential for difficulties arising was, of course, limited while
Ethekwini owned both properties.

[5] As far back as the 1960s, Olive’s property was used as an ice rink. Later, a
cinema was added to it. Eden’s property was initially required to provide parking for
patrons of the ice rink and the cinema on the basis of a provision in a long lease. In
early 1967, Ethekwini rezoned Eden’s property to provide, inter alia, that it ‘shall only
be used for the parking of vehicles, and be fenced, hardened, arranged and laid out,
and means of ingress and egress established, all to the satisfaction of the City
Engineer’.

[6] Ethekwini then began to negotiate with Durban Holiday Inn (Pty) Ltd (the
Holiday Inn), which wished to build a hotel on the property. The lease that was
concluded by Ethekwini and the Holiday Inn, in May 1972, provided that 250 parking
spaces were to be reserved ‘exclusively for use by the patrons of the cinema and/or
Icedrome’. This right was also confirmed in the lease concluded by Ethekwini and the
operator of the ice rink and cinema. By this stage, the town planning scheme
applicable to the Eden property had been amended to provide that, in addition to the
parking required by the Holiday Inn, ‘250 parking spaces shall be provided for the
exclusive use by patrons of the Cinema and/or Icedrome’. This provision remains in
force to this day.

[7] The Holiday Inn constructed a hotel on the Eden property. It also built a multi-
storey parking lot, as an integrated component of the hotel. On two occasions, it

applied unsuccessfully to Ethekwini for the relaxation of its obligation to provide 250
parking spaces for patrons of the Olive property.

[8] In the early 1990s, the Holiday Inn ceded its lease to Renhill Properties Share
Block Ltd. The parking obligation remained in place. In 1993, a property developer,
Scott & Scott Property Investments CC (Scott & Scott) obtained a cession of the lease.
The obligation to provide 250 parking spaces for patrons of the Olive property still
remained in place.

[9] In 1994, Scott & Scott and Ethekwini agreed that Eden would become the
lessee of the property in order to develop a retirement scheme on it, and that, in due
course, Eden would purchase the property from Ethekwini. In July 1994, Eden and
Ethekwini concluded an agreement of sale in respect of the property.

[10] The deed of sale provided, inter alia, that: the ‘existing lease of the lot shall
terminate on date of transfer’;2 the property would only be used and developed ‘in
accordance with all relevant Municipal By-Laws and Town Planning Scheme
Regulations in force from time to time’;3 it would ‘only be used for the purpose defined
in section 4C of the Housing Development Schemes for Retired Persons Act
65/1988’;4 and in the event of the cancellation of the agreement, Eden would ‘remain
bound by the terms and conditions of the Notarial Deed of Lease in terms of which it
occupies the lot and shall continue to abide by [the] terms of such Lease . . .’.5

2 Clause 3.1.
3 Clause 13.1.
4 Clause 13.2. Section 4C(1) of the Retired Persons Act provides:
‘(a) No developer shall alienate a right of occupation in relation to a housing interest which originated
as from the commencement of the Housing Development Schemes for Retired Persons Amendment
Act, 1990, or enter into an agreement having such effect or purporting to have such effect, unless the
title deed of the land concerned to which such right relates, has, with the consent of the owner of that
land and, if the land is encumbered by a mortgage bond, the consent of the mortgagee, or, in the case
of a participation bond, the consent of the nominee company concerned as contemplated in the
Participation Bonds Act, 1981 (Act 55 of 1981), in whose favour the bond is registered, been endorsed
by a registrar as defined in section 102 of the Deeds Registration Act, 1937 (Act 47 of 1937), to the
effect that such land is subject to a housing development scheme.
(b) For the purposes of paragraph (a) it shall be deemed that a right of occupation in relation to a
housing interest originates as soon as a developer alienates the first right of occupation in a housing
development scheme.’
5 Clause 16.3.

[11] Clause 15 is central to this appeal. It is headed ‘PARKING SERVITUDE’ and
provides:
’15.1
It is recorded that in term of clause 9 of the Deed of Lease l42/72 registered in respect
of the lot, the Lessee (and in this case the Purchaser) is obliged to provide and have available
parking on the lot for at least 250 motor vehicles for the Lessee of the adjoining property
described as Lot 11444 Durban (the dominant tenement).
15.2
It is agreed that a parking servitude over the lot shall be created in favour of the
dominant tenement and registered by Notarial Deed simultaneously with registration of
transfer of the lot in the name of the Purchaser whereby parking for at least 250 motor vehicles
is secured over the lot in favour of the dominant tenement. The cost of registering such
servitude, which shall be prepared and registered by the City Council’s Attorneys, including
survey costs and the preparation of the survey diagram, shall be borne by the Purchaser.
15.3
The servitude shall contain inter alia, the following conditions:
15.3.1 The servitude area shall be used for the purposes of parking at least 250 motor
vehicles and shall be made available for the exclusive use of the dominant tenement.
15.3.2 The Purchaser may charge a tariff for the use of the servitude area comprising
the parking area which may not be more than the average amounts charged for a
similar period of time for parking by parking garages in the vicinity of the lot.’

[12] Despite clause 15.2 contemplating the simultaneous registration of the
servitude and the transfer of the property, this did not happen. For pragmatic reasons,
it was agreed by Eden and Ethekwini that transfer would proceed and the servitude
would be registered later. Transfer occurred on 16 April1996.

[13] The servitude was registered on 18 February 1997. The deed of servitude
recorded that Eden had granted, on 28 July 1994, in favour of the Olive property,
described as the dominant tenement, ‘in perpetuity, together with all the rights
necessary and incidental to the use and enjoyment thereof, a certain Servitude to
provide parking for at least 250 motor vehicles’ over the Eden property, described as
the servient tenement. The servitude was subject to three conditions. They are:
‘(a)
The cost of preparation and registration of the Deed of Servitude, including survey
costs and preparation of the survey diagram shall be borne by the Grantor.

(b)
The Servitude area shall be used for the purpose of parking at least 250 motor vehicles
and shall be made available for the exclusive use of the dominant tenement.
(c)
The Grantor may charge a tariff for the use of the servitude area comprising the parking
area which may not be more than the average amounts charged for a similar period of
time for parking, by parking garages in the vicinity of the servient tenement.’

[14] In or about August 2003, Ethekwini published a developers brief that called for
offers to purchase the Olive property and proposals to develop it. The developers brief
made specific reference to the parking servitude over the Eden property in favour of
the Olive property. Olive submitted an offer on 19 September 2003. Olive and
Ethekwini concluded an agreement of sale on 22 September 2008. Clause 8.3 of that
agreement recorded that ‘a parking servitude has been created and registered over
the adjoining property described as Erf 11496 Durban in favour of [erf 12424] . . .
whereby parking for at least 250 motor vehicles has been secured for the exclusive
use of patrons or users of [erf 12424]’. Transfer of the property was registered on 21
September 2009.

The issues
The nature of the servitude
[15] The first attack on the validity of the servitude is that it is a specific, as opposed
to a general, servitude that is void for two reasons. First, it does not identify the parking
spaces. Secondly, the number of parking spaces it provides for is uncertain.

[16] The second issue can be dealt with summarily. The servitude provides that
Eden must make available to Olive parking for ‘at least 250 motor vehicles’. There is
no uncertainty about this. All it means is that Eden must provide 250 parking spaces
and, if it chooses or agrees to provide more, it may do so. As it may charge for the
parking, there may be an incentive for it to offer more than 250 parking spaces.

[17] I turn now to the first issue. It is necessary in the first instance to determine
whether the servitude is a specific or general one. A general servitude was defined by

Cameron and Froneman JJ, in Tshwane City v Link Africa and Others,6 to be a
servitude that allows ‘the dominant owner to select the essential incidental rights of
the necessary premises and to take access to them as needed for the exercise of the
servitude’.

[18] The way in which a problem such as this is to be approached was dealt with by
Hefer JA in Nach Investments Ltd v Yaldai Investments (Pty) Ltd and Another.7 A deed
of sale had provided that a seller ‘reserves to itself and its successors in title . . . a
servitude of right of way in perpetuity . . . the exact route of which servitude is to be
determined by agreement between the seller . . . and the purchaser . . .’. When no
agreement had been reached despite several attempts, the purchaser applied for a
declaratory order that the servitude was void for vagueness and invalid.

[19] Hefer JA’s starting point was that the route of a right of way is not an essential
term, in the sense that the parties are free to either constitute the right of way on a
specific route or generally. If a general servitude is created, ‘the entire servient
tenement is subject to the servitude and the grantee may select a route provided only
that he does so civiliter modo’.8 Hefer JA then made a second observation about
servitudes that do contain a reference to a route. He stated:9
‘The second observation is that where the formulation does contain such a reference and the
route is said to be determinable by agreement, the servitude may or may not be valid
depending on the intention of the parties. If the intention is to constitute a specific right of way,
ie one which may only be exercised along a specifically defined route, the agreement is
inchoate at least as to a material term and for that reason it is unenforceable until the route is
agreed upon. But the agreement is perfectly valid and enforceable if a general servitude is
intended and there is a reference to a future agreement merely because the parties
contemplate that the route will eventually be agreed upon. What is envisaged in such a case
is an initial general right which may be converted to a specific one by subsequent agreement.
Accordingly, where there is a dispute about the nature of the right conferred on the grantee in

6 Tshwane City v Link Africa and Others [2015] ZACC 29; 2015 (6) SA 440 (CC) para 142.
7 Nach Investments Ltd v Yaldai Investments (Pty) Ltd and Another 1987 (2) SA 820 (A).
8 At 831C-E. See too A J van der Walt The Law of Servitudes (2016) at 418-420.
9 At 831F-H.

any given case, the intention of the parties is decisive. It is to be determined, of course, by
interpreting the agreement according to the normal rules of construction.’

[20] Clause 15 of the deed of sale embodies the agreement to create the servitude
and the deed of servitude mirrored its terms in material respects. Both instruments
refer to the costs of a survey diagram being borne by Eden. When the servitude was
registered, however, there was no survey diagram. One is not required for the
registration of a general servitude. For what it is worth, the Registrar of Deeds in all
likelihood must have been satisfied that he was dealing with a general servitude. More
importantly, in both instruments, no reference is made to where on the servient
property the parking spaces are to be; and no reference is made either of any
agreement to agree to this in the future. The servitude is simply created ‘over the lot’
and ‘in favour of the dominant tenement’. This makes it clear that the parties intended
that the entire servient tenement was subject to the servitude and that Olive had the
right to select the parking spaces, subject to acting civiliter modo.10 From a practical
perspective, I am sure that the civiliter modo principle would restrict the choice of
parking spaces to within the parking garage.

[21] My findings that the servitude is a general servitude, that no mention was made
at all of where on the servient tenement the parking spaces were to be and no mention
was made of this being agreed in the future, distinguish Seale and Others v Minister
of Public Works and Others,11 which was relied on by Eden. In that case, the servitude
had been held to have been a specific one that had identified three general locations
for points of access to the Hartbeespoort Dam, the specifics of which had to be agreed
to by the parties but had not been. In these circumstances, Van der Merwe JA held
that ‘[m]aterial elements of the right of access would therefore only be determined by
further agreement’ and this amounted to ‘an agreement to agree’,12 which was
unenforceable as no deadlock-breaking mechanism had been put in place.13

10 This means no more than that Olive must, in choosing the parking spaces, act ‘reasonably viewed,
with as much possible consideration and with the least possible inconvenience to the servient property
and its owner’ (Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd [2006] ZASCA 118; 2007 (2) SA
363 (SCA) para 21).
11 Seale and Others v Minister of Public Works and Others [2020] ZASCA 130.
12 Para 27.
13 Para 32.

[22] The result of my findings set out above is that the servitude is not invalid on
account of its failure to specify the location of the parking spaces. There are no
reasonable prospects of success on appeal in relation to the first ground of attack on
the validity of the servitude.

The Share Blocks Act and the Retired Persons Act
[23] I turn now to the question whether the servitude is invalid as a result of the
absence of approvals in terms of s 8(1)(c) of the Share Blocks Act and s 4B of the
Retired Persons Act.

[24] Section 8(1)(c) of the Share Blocks Act provides:
(1) Notwithstanding anything to the contrary contained in any law-
. . .

(c)
a share block company shall not have the power, save with the approval by
special resolution of a general meeting of the share block company, to alienate
or cede, as the case may be, any immovable property of which it is the owner
or any of its rights to immovable property of which it is not the owner and in
respect of which it operates a share block scheme.’

[25] Section 4B of the Retired Persons Act provides:
‘(1) Unless at least 75 per cent of the holders of rights of occupation in a housing development
scheme consent thereto the land concerned may not be alienated free from such rights . .
(2) Any alienation taking place without the consent of the holders as contemplated in
subsection (1) shall be null and void.’
Section 1 of the Act defines the term ‘alienate, in relation to a housing interest’, to
mean:
‘(a)
sell, exchange, lease, donate, grant or otherwise dispose of or place at disposal; or
(b)
the making of an irrevocable offer to acquire the interest for consideration.’

[26] The argument advanced on behalf of Eden was that because the servitude
agreed to in July 1994, before any shares in the share block company were sold to
retirees, was not registered simultaneously with transfer, on 16 April 1996, but only on

18 February 1997, transfer of an unencumbered property occurred and, when the
servitude was registered, the encumbrance of the servitude amounted to an alienation.
As an alienation of immovable property of a share block company requires the
authorisation of a special resolution of a general meeting of the company, and this did
not occur, the servitude is invalid. A similar argument was made in respect of s 4B of
the Retired Persons Act: the alienation was never consented to by at least 75 percent
of the holders of rights of occupation of the Eden property with the result that, in terms
of s 4B(2), the alienation was a nullity.

[27] In order to assess the merits of this argument, it is necessary to track the
development of the right in favour of the Olive property to parking spaces on the Eden
property. Clause 3.1 of the deed of sale provided that the lease that had been in place
would only terminate on the date of transfer. The obligation to provide parking to
patrons of the Olive property was a term of Eden’s lease. It was therefore obliged in
terms of the lease to provide parking from the date of the signing of the deed of sale
in July 1994 until the date of transfer on 16 April 1996.

[28] Clause 15.2 of the deed of sale provided that the parking servitude would be
created simultaneously with registration of transfer. As, by agreement, registration of
the servitude did not occur at the same time as transfer, as initially envisaged, the
servitude that came into existence on 16 April 1996 was unregistered from that day
until 18 February 1997.

[29] The effect of an unregistered servitude was set out as follows by van der Walt:14
‘In this respect, registration is a validity requirement for the creation of servitudes; prior to or
in the absence of registration, there is no valid servitude yet but merely a personal right that
is valid only between the parties to the agreement in which it is embodied.’
He adds that the personal right includes a right to the co-operation of the other party
in the registration of the servitude and personal rights identical to the servitude.15 In

14 Note 8 at 92-93.
15 Note 8 at 93, fn 112.

Bowring NO v Vrededorp Properties CC and Another,16 Brand JA held that a purchaser
with knowledge of an unregistered servitude ‘will be bound, not only to give effect to
the servitude, but also to co-operate in having the servitude registered’.

[30] So, from the date of transfer on 16 April 1996 until the registration of the
servitude on 18 February 1997, the owner of erf 12424 – Ethekwini – enjoyed personal
rights against Eden, in the terms embodied in clause 15 of the deed of sale, in respect
of parking spaces for at least 250 vehicles on Eden’s property. On registration of the
servitude, these personal rights were converted into real rights enforceable against
Eden and its successors in title. And in the background, the town planning scheme
imposed precisely the same obligation on Eden.

[31] It is apparent from what I have set out above that there was no time, from when
Eden first leased its property until the registration of the servitude, that it was free of
the obligation to provide 250 parking spaces for the patrons of the Olive property.
When it purchased the property it did so subject to the parking obligation and it agreed
then to the creation of a parking servitude. It never enjoyed occupation or ownership
of the property free from the parking obligation in one form or another. It cannot
therefore be said to have alienated any part of its property.  For this reason, s 8(1)(c)
of the Share Blocks Act and s 4B of the Retired Persons Act have no application and
have no effect on the validity of the servitude. In any event, having agreed to purchase
the property subject to the parking obligation, the subsequent registration of the
servitude in fulfilment of that obligation cannot be equated to an alienation of the
property.

[32] These provisions do not apply for another reason too. The deed of sale was
signed in July 1994. It was signed on behalf of Eden by Mr Anthony Scott, a director
of the sole shareholder of Eden, namely Scott & Scott. At that stage, Eden had not
sold a single share to a retiree. That only commenced in December 1994. Neither the
Share Blocks Act nor the Retired Persons Act have any application for that reason and

16 Bowring NO v Vrededorp Properties CC and Another [2007] ZASCA 80; 2007 (5) SA 391 (SCA) para
8.

because, when Eden concluded the agreement of sale, it never alienated anything.
Instead, it acquired the property, but it did so subject to the parking obligation.

[33] My conclusion is that the servitude is not invalid on account of any conflict with
the Share Blocks Act or the Retired Persons Act. There are consequently no
reasonable prospects of Eden succeeding on appeal in relation to the second ground
of attack on the servitude.

The conditional applications for leave to appeal
[34] After the matter was referred to trial, Olive initiated a claim for damages against
Ethekwini. It was conditional on the high court finding that the servitude was invalid.
As the high court pointed out, ‘absent a finding that the servitude is invalid, there is no
dispute and no lis between [Olive] and [Ethekwini]’. As it upheld the validity of the
servitude, it dismissed, in paragraph 6 of its order, Olive’s claim against Ethekwini with
costs. Olive’s application for leave to appeal against this order is conditional on leave
to appeal being granted to Eden.

[35] After Ethekwini had been drawn into the fray, it initiated third party proceedings
against, inter alia, Shepstone & Wylie. Its claim against Shepstone & Wylie was also
conditional on the servitude being found to be invalid. As a result of the high court
finding that the servitude was valid, it dismissed, in paragraph 7 of its order,
Ethekwini’s conditional claim against Shepstone & Wylie with costs. Ethekwini’s
application for leave to appeal against this order is also conditional on leave to appeal
being granted to Eden.

[36] Even though a central plank of the cases of Olive, Ethekwini and Shepstone &
Wylie is the validity of the servitude, the basis for raising it differs from party to party.
It is the basis for Olive’s case against Eden; it is the principal defence raised by
Ethekwini against Olive’s claim; and it is likewise the principal defence of Shepstone
& Wylie in the third party proceedings brought by Ethekwini. In this scheme, there is a
lis between Olive and Eden, a separate conditional, lis between Olive and Ethekwini
and yet another separate conditional lis between Ethekwini and Shepstone & Wylie.

[37] As Eden’s application for leave to appeal cannot succeed, both Olive’s
application for leave to appeal against the dismissal of its claim against Ethekwini, and
Ethekwini’s application for leave to appeal against the dismissal of its third party claim
against Shepstone & Wylie have no reasonable prospects of success. Both must be
dismissed with costs.

The order
[38] I make the following order:
Eden Crescent Share Block Ltd’s (Eden) application for leave to appeal is
dismissed.
Eden is directed to pay the costs of Olive Marketing CC (Olive), including the
costs of two counsel where employed.
Olive’s application for leave to appeal against paragraph 6 of the high court’s
order is dismissed.
Olive is directed to pay the costs of the Ethekwini Municipality (Ethekwini),
including the costs of two counsel where employed.
Ethekwini’s application for leave to appeal against paragraph 7 of the high
court’s order is dismissed.
Ethekwini is directed to pay the costs of Shepstone & Wylie, including the costs
of two counsel where employed.

________________________
C Plasket
Judge of Appeal

APPEARANCES

For the applicant:

A Annandale SC and W N Shapiro SC
Instructed by:
Livingston Leandy Inc, Umhlanga
Rocks

McIntyre Van der Post, Bloemfontein

For the first respondent:
M Pillemer SC
Instructed by:
Eversheds Sutherland (KZN) Inc, La
Lucia

Honey Attorneys, Bloemfontein

For the second respondent:
G Goddard SC
Instructed by:
Luthuli Sithole Attorneys, Durban

Matsepes Inc, Bloemfontein

For the third party:
S R Mullins SC and P J Wallis SC
Instructed by:
Clyde & Co, Sandton

Honey Attorneys, 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

9 December 2022

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

Eden Crescent Share Block Ltd v Olive Marketing CC and Others (1075/2020)
[2022] ZASCA 177
(9 December 2022)

MEDIA STATEMENT

The Supreme Court of Appeal (SCA) today dismissed the application for leave to
appeal, referred for oral argument, of Eden Crescent Share Block Ltd (Eden) against
Olive Marketing CC (Olive). It also dismissed Olive’s conditional application for leave
to appeal against the Ethekwini Municipality (Ethekwini), as well as Ethekwini’s
conditional application for leave to appeal against a third party, Shepstone & Wylie.

The matter concerned two neighbouring properties in Durban originally owned
by Ethekwini. It sold one of them to Eden (the Eden property) and the other to Olive
(the Olive property). For more than 60 years, an obligation had been in place in terms
of which the Eden property was required to provide parking for patrons of the Olive
property. This obligation had been part of every lease in respect of the Eden property
and was also included in the town planning scheme. When Ethekwini sold the property
to Eden, the parties agreed in the deed of sale to the creation of a servitude in favour
of the Olive property in respect of parking for at least 250 motor vehicles. The servitude
was to be registered simultaneously with the transfer of the property to Eden. For
reasons of practicality, the parties later agreed that the registration of the servitude
would occur after transfer.

Eden, despite its agreement to the creation of the servitude, refused to allow
Olive the use of parking spaces on its property. Olive applied in the KwaZulu-Natal
Division of the High Court, Durban to enforce the servitude. The application was

referred to trial whereupon Ethekwini was joined as a defendant. Its potential liability
to Olive could only have arisen if it was found that the servitude was invalid. Ethekwini,
in turn, joined a number of third parties, including Shepstone & Wylie, the attorneys
who had registered the servitude. Its potential liability to Ethekwini was similarly
dependant on a finding being made that the servitude was invalid. The high court found
that the servitude was valid and ordered its enforcement. It consequently dismissed
Olive’s conditional claim against Ethekwini and Ethekwini’s conditional claims against
the third parties.
Eden then applied for leave to appeal, which was refused by the high court. On
petition to the SCA, it was ordered that the applications for leave to appeal of Eden
against Olive, of Olive against Ethekwini and of Ethekwini against Shepstone & Wylie
(the only third party taking part in the proceedings at that stage) were referred for oral
argument.
Eden argued that the servitude was invalid because it never specified the
precise number of parking spaces that were to be made available and where on the
Eden property those parking spaces were located. In addition, it argued that the
servitude represented an alienation of its property and the special procedures required
by the Share Block Control Act 59 of 1980 and the Housing Development Schemes
for Retired Persons Act 65 of 1988 for the authorisation of the alienation of property
had not been complied with.
The SCA found that the number of parking spaces was clear: Eden had to
provide 250 parking spaces and, if it wished to, it could provide more. On the question
of the location of the parking spaces, it held that the servitude that had been created
was a general, as opposed to a specific, servitude. In the absence of agreement, the
dominant owner – Olive, in this case – had the right to choose the location of the
parking spaces, subject to it exercising this right civiliter modo – reasonably and
considerately.
The SCA found that Eden’s reliance on the two statutes mentioned above was
misplaced. As Eden had always occupied the property, whether as lessee or owner,
subject to the parking obligation owed to the Olive property, and it had purchased the
property on this basis, there had never been an alienation. Furthermore, having
agreed to purchase the property subject to the parking obligation, the subsequent
registration of the servitude in fulfilment of that obligation could not be said to be an
alienation.
As a result, the SCA dismissed Eden’s application for leave to appeal because
it had no reasonable prospect of success on appeal. In these circumstances, Olive’s
and Ethekwini’s conditional applications for leave to appeal were also dismissed as
they too had no reasonable prospects of success. In all three applications, the costs
followed the result.