THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No:  713/11

In the matter between:

ROYAL HOTEL RIVERSDAL (PTY) LTD

APPELLANT

and

NACHLEY SIMON NO

FIRST  RESPONDENT
BEATRIX HELENA SIMON NO

SECOND RESPONDENT

Neutral citation: Royal Hotel v Simon NO  (713/11) [2012] ZASCA 118 (18 September
2012)

Coram:
HEHER, CACHALIA, MALAN, TSHIQI AND PILLAY JJA

Heard:
28 August 2012

Delivered:
18 September 2012

Updated:

Summary:
Servitude – praedial – interpretation – entitlement to park on servient
tenement – erection of building on substantial portion of servitude area –
breach of entitlement.

____________________________________________________________________________________
ORDER

On appeal from: Western Cape High Court (Cape Town) (Dlodlo, Saldanha and
Desai JJ sitting as court of first instance):
1.
The appeal is dismissed with costs.
2.
The order of the court a quo is amended to read as follows:
„(a)
The appeal is upheld with costs.
(b)
The order of the court of first instance is set aside and replaced with an order in the following
terms:
“(i)
An order is granted in terms of para 2.1 of the notice of motion.
(ii)
Save as aforesaid the application is dismissed with costs.”‟

_______________________________________________________________________
JUDGMENT
_____________________________________________________________________
HEHER JA (CACHALIA, MALAN, TSHIQI AND PILLAY JJA concurring):
[1] This appeal concerns the interpretation of a servitude. The appellant who was the
applicant at first instance succeeded in the Western Cape High Court before Veldhuizen
J. However, on appeal by the present respondents to the Full Court (Dlodlo J, Saldanha
and Desai JJ concurring) the order was set aside and replaced by one dismissing the
application with costs. The appellant was thereafter granted special leave to appeal to this
Court.

[2] In September 2003 the respondents, the trustees for the time being of the Simon
Family Trust, were the registered owners of erf 5372, Riversdale. On 26 September 2003
they sold the northern portion of that property, in extent 9 763 square metres, to the
appellant. The property sold became erf 6728 on transfer on 3 December 2003. That
property and the remaining extent of Erf 5372 were referred to in the papers as Portions A
and B respectively and it will be convenient to adopt this nomenclature. Portion B
remained the property of the respondents.

[3] The common boundary between the portions runs west to east. Along the western
boundary lies the N2 national road to Mossel Bay. Before transfer, access to the
undivided property was gained from a road along the northern boundary (which remains
the case in relation to Portion A). That road met the N2 at the north west corner of the
property. It was and is the access point for both portions from the national road.

[4] At all material times there has been a building on the land lying in a north-south
direction across what is now the common boundary in a central location. At the time of the
sale it was let by the respondents to two tenants, Ball Trading and Die Rooi Aalwyn
Padstal, and, it would seem, the respondents themselves carried on business in the
southern section.

[5] The subject-matter of the deed of sale consisted not only of Portion A but also the
letting business of the seller and the two leases. Of special relevance to the appeal, the
deed also created praedial servitudes in favour of Portion B. The relevant terms of the
contractual clauses were these:
1.
The description of the property sold („Die Eiendom‟) was qualified as follows:
„Met voorbehoud ten gunste van die Restant van Erf 5372 Riversdal (GEDEELTE B op die
Sketsplan hierby aangeheg, hierna genoem Gedeelte B) oor die Eiendom van:
1.3.1
„n Serwituutgebied voorgestel deur die figuur ABSDSKJA op die Sketsplan hierby aangeheg,
die serwituut voorwaardes waarvan in klousule 13.1 hieronder meer breedvoerig uiteengesit word.‟
(The second servitude, a road over portion A, is not relevant to these proceedings.)
2.
Clause 13 („SPESIALE VOORWAARDES‟):
‘13.1 Die hiernavolgende voorwaardes sal geld met betrekking tot die serwituutgebied waarna
verwys word in klousule 1.3.1 hierbo:
13.1.1 Die Eienaar van die Eiendom sal geen obstruksie plaas in die gebied van die bestaande
sementbaan nie, wat in die weg van voertuigverkeer na Gedeelte B mag staan, ook vir swaar
verkeer indien „n vulstasie moontlik in die toekoms op Gedeelte B opgerig mag word.
13.1.2 Die parkeerarea aan die voorkant van die bestaande gebou op die Eiendom sal gereserveer
wees vir kliënte van die besighede in die gebou.
13.1.3 Vragmotors en busse sal, soos dit tans die gebruik is, steeds geregtig wees om op die
bestaande gruis area naaste aan die N2-Nasionale Pad te parkeer.‟

[6] Although the servitude was executed simultaneously with the registration of
transfer it became common cause that the terms of its registration did not accord with the
terms embodied in the deed of sale.

[7] At the beginning of 2007 the appellant investigated the possibility of erecting a
further free-standing building within the servitude area on that portion of Portion A which
is referred to in clause 13.1.3 as the „gruis area‟ (the gravel area). The proposed structure
would cover some twenty per cent of that area and be located in the north-western
quadrant of Portion A near the service road. It is clear from the sketch plan annexed to the
replying affidavit that it will not obtrude on to the areas described in clauses 13.1.1 and
13.1.2, respectively and will not obstruct access to either or to Portion B.

[8] The appellant instructed its attorney to discuss with the first respondent the
differences between the description of the servitude in the deed of sale and in the title
deed of Portion A, and also its proposed erection of the building within the servitude area.
The report that it subsequently received was that the respondents had no interest in any
such discussion.

[9] In December 2007 the appellant applied to the High Court for an order in the
following terms:
„1.
Wat verklaar dat die Applikant geregtig is om die gebou met die posisie en spesifikasies
soos beoog in Aanhangsel “E” by die funderende eedsverklaring aangeheg binne die gebied
ABCDSKJA soos aangedui op Aanhangsel “E” en die sketsplan tot Aanhangsel “C” by die
funderende eedsverklaring aangeheg op te rig aangesien dit geen inbreuk maak op enige
serwituutregte van die Respondente nie.
2.
Alternatiewelik, en slegs indien die Agbare Hof nie bereid is om die bevel in 1 toe te staan
nie, „n bevel:
2.1
Wat gelas dat die serwituut soos omskryf in voorwaarde D(a) op bladsy 3 van Transportakte
T113383/2003 geliasseer in die Kantoor van die Registrateur van Aktes (Aanhangsel “A” tot die
Applikant se Funderende Eedsverklaring), geskrap word en vervang word met die serwituut soos
bewoord in Klousule 1.3.1 gelees met Klousule 13 van die koopooreenkoms tussen die Applikant en
die Eerste en Tweede Respondente gesluit soos per Aanhangsel “C” tot die Funderende
Eedsverklaring;

2.2
Wat verklaar dat die Applikant geregtig is om die gebou met die posisie en spesifikasies
soos beoog in Aanhangsel “E” by die funderende eedsverklaring aangeheg binne die gebied
ABCDSKJA soos aangedui op Aanhangsel “E1” en die sketsplan tot Aanhangsel “C” by die
funderende eedsverklaring aangeheg op te rig aangesien dit geen inbreuk maak op enige
serwituutregte van die Respondente nie.‟

[10] After service of the application the respondents consented to an order in terms of
para 2.1 of the notice of motion. Despite this, neither of the courts below made such an
order or provided reasons for that failure. I propose to correct that shortcoming in the
order in this appeal.

[11] The application nevertheless proceeded in respect of para 1 of the notice. Both
parties elected to argue on the papers, eschewing the opportunity to resolve by evidence
conflicts arising from the affidavits. This attitude must, in accordance with the practice in
motion proceedings, redound to the benefit of the present respondents. The relief claimed
depended upon the applicant bringing its proposed erection of the building within the
permitted scope of the servitude without which it could not discharge the onus of proof.

[12] The task of the court is to determine the intention of the parties to the agreement
that created the servitude. In so far as the language used by them is clear and
unambiguous effect must be given to it. But even clear expression can benefit from an
appreciation of its context in the written agreement against the background of
circumstances relevant to its conclusion provided that the plain meaning is not thereby
contradicted or varied.

[13] What principles must one apply in interpreting the servitude, recognising that it is,
in essence, only a contract to achieve a particular end? It is unnecessary to rehash all the
conflicting approaches. They are adequately debated by my colleague Wallis JA in his
article, What’s in a word? Interpretation through the eyes of ordinary readers 127 SALJ
(2010) 673, and do not give rise to controversy in this appeal.

[14] It is sufficient for present purposes to examine the combined effect of the relevant

facts present to the minds of the parties at the time of contracting, and the language
adopted by them in the context of their contract as a whole. These are the signposts to
their common intention and, as will become apparent, they point to a single destination.

The background circumstances
[15] Although the context may at first glance appear to be two parties on an equal
footing endeavouring to regulate their future relationship as owners of adjoining properties
who will both carry on commercial enterprises on those properties, that summary provides
an inadequate picture. The heart of the matter was the viability of Portion B as a separate
entity. To survive and prosper, the evidence shows, Portion B required user friendly
access to the highway and adequate parking for visiting business traffic including buses
and lorries. The negotiation took place in the context of an existing situation in which such
vehicles parked freely and indiscriminately on the gravel area on what was to become
Portion A. This benefited businesses carried on in the building on both sides of the
proposed division of the property. There is no suggestion in the papers that at that time
the appellant contemplated a development of Portion A in any manner inconsistent with
the continuation of that practice. There is some dispute as to its frequency, but that is of
little significance as it is common cause that the parties envisaged a dynamic
development of Portion B.

[16] The evidence of surrounding circumstances established, first, that the existing
practice was for buses and lorries visiting the business now conducted on Portion B to
park anywhere on the gravel area and, second, that the servitutal conditions were framed
at the instance of the seller in the interest of the promotion and expansion of the business
to be carried on Portion B and that the appellant was aware of that intention.

The structure and language employed by the parties
[17] Starting with the written agreement it seems clear from clause 1.3.1 that the parties
contemplated only a single servitude area. According to the ordinary meaning it would be
that area in respect of which the servient tenement agreed to limit its rights of ownership
in favour of the dominant tenement. In so far as clause 13.1 contains the conditions of
servitude it should, in the absence of clear language to the contrary, be interpreted so as

to give effect to that meaning. Approached in that way:
1.
Clause 13.1.1 secures unobstructed access by traffic including heavy vehicles, to
Portion B over the cement track („baan‟), in the event of the opening of a filling station on
Portion B in the future.
2.
Clause 13.1.2 is framed unequivocally as a limitation on the dominant tenement‟s
use of the servitude area by reserving the parking area in front of the existing building for
use by clients of the business in it.
3.
Clause 13.1.3 entitles lorries and buses to park on the gravel area nearest to the
N2 „as is presently the practice‟.

[18] It is clause 13.1.3 upon which the dispute turns. The submission of appellant‟s
counsel, which also finds a voice in the founding affidavit, is that, properly interpreted, as
with clause 13.1.2, the entitlement is a limitation on the breadth of operation of the
servitude in favour of the servient tenement. I do not agree. There is an absence in clause
13.1.3 of the clear language to be found in the preceding clause which compels that
conclusion. Without it the suggested restriction is in conflict with the ordinary meaning of
clause 1.3.1 as identified earlier. Moreover, the gravel area, which, as the sketch shows,
takes up the greater part of the servitude area defined in clause 1.3.1, only has
meaningful content if clause 13.1.3 is interpreted in favour of the dominant tenant; absent
that content there is no identifiable servitutal use over that area, which makes nonsense
of providing for a servitude over it at all. In law a „servitude‟ which confers no permanent
advantage present or future upon a supposed dominant tenement cannot be a praedial
servitude (Voet 8.4.15) and, in the present instance, would provide no basis for a personal
servitude either. Such a conclusion flies in the face of the manifest utility that the
respondents intended to derive from the agreement.

[19] Thus both the background to the parties‟ consensus and the proper construction of
the agreement conflict with the interpretation which the appellant seeks to attach to clause
13.1.3.

[20] The correct meaning of that clause is that the dominant tenement is entitled to
insist on a right to have buses and lorries visiting its premises park anywhere on the

gravel area. The entitlement does not confer an exclusive right to park on the gravel area
in favour of such visitors but it is such as to entitle the respondents to defend the right
conferred on Portion B against a proposed development on the servitude area that would
detract from its reasonable use for the agreed purpose. That such would be the effect of
the erection of a building that covers a substantial proportion of the gravel area, as is
proposed by the appellant, is beyond doubt. The court of first instance should therefore
have found that the appellant had fallen short of proving that it was entitled to the relief
claimed in para 1 of the notice of motion, as indeed the court a quo did.

[21] In the result the following order is made:
1.
The appeal is dismissed with costs.
2.
The order of the court a quo is amended to read as follows:
„(a)
The appeal is upheld with costs.
(b)
The order of the court of first instance is set aside and replaced with an order in the following
terms:
“(i)
An order is granted in terms of para 2.1 of the notice of motion.
(ii)
Save as aforesaid the application is dismissed with costs.”‟

_________________

J A HEHER

JUDGE OF APPEAL

APPEARANCES

APPELLANT:

N J Treurnicht SC

W F Botha Attorney, Stilbaai

Symington & De Kok, Bloemfontein

RESPONDENTS:

W Vos

M J Vermeulen Inc, c/o Walkers Inc, Cape Town

Hill McHardy & Herbst, Bloemfontein