Janse van Rensburg and Another v Koekemoer and Others

• Jurisdiction: South Africa
• Citation: 2011 (1) SA 118 (GSJ)

Janse van Rensburg and Another v Koekemoer and Others
2011 (1) SA 118 (GSJ)

2011 (1) SA p118

Citation	2011 (1) SA 118 (GSJ)
Case No	2006/28207
Court	South Gauteng High Court, Johannesburg
Judge	CJ Claassen J
Heard	September 22, 2010
Judgment	October 11, 2010
Counsel	JW Steyn for the applicants.; DG Dobie for the first respondent.

Flynote : Sleutelwoorde B

Servitude — Habitatio — Creation — Servitude of habitatio may not be created by oral agreement — Right of habitatio, being real right, only enforceable upon registration thereof against title deed of land — Right of habitatio amounting C to interest in land, the alienation of which must be in writing as condition for validity — Donation of right of habitatio also alienation and required to be in writing — Alienation of Land Act 68 of 1981, s 2(1), and General Law Amendment Act 50 of 1956, s 5.

Headnote : Kopnota

A right of residence on land for life constitutes an 'interest in land', which term D is included in the definition of 'land' in s 1 of the Alienation of Land Act 68 of 1981(the ALA). The requirement in s 2(1) of the ALA that agreements alienating land be in writing, renders an oral agreement alienating a right of residence for life in land of no force or effect. (Paragraphs [16] - [17] at 124D - 125D.)

A servitude is at its inception - when agreed to by the parties - a real right which E can only be enforced against the grantor once it is registered against the immovable property's title deed. The conclusion of an oral agreement of residence on land for life provided no right of habitatio, registration thereof being a prerequisite for the validity of such personal servitude. (Paragraphs [13] and [19] at 123F and 126D.)

When a right of habitatio is afforded without payment, it constitutes a donation F of a future entitlement and, as such, is required by s 5 of the General Law Amendment Act 50 of 1956 to be in writing, to have any force or effect. Moreover, the word 'alienation' in the Alienation of Land Act 68 of 1981 is defined in the Act to include a donation, so that, in terms of s 2(1) thereof, a donation of an interest in land must be in writing to be valid. (Paragraph [20] at 126E - G.)

Cases Considered

Annotations G

Reported cases

Barclays Western Bank Ltd v Comfy Hotels Ltd 1980 (4) SA 174 (E): referred to

Cape Explosive Works Ltd and Another v Denel (Pty) Ltd and Others 2001 (3) SA 569 (SCA) ([2001] 3 All SA 321): dictum in para [12] applied H

Cowley and Another v Hahn 1987 (1) SA 440 (E): criticised and not followed

Denel (Pty) Ltd v Cape Explosive Works Ltd and Another; Cape Explosive Works Ltd v Denel (Pty) Ltd and Others 1999 (2) SA 419 (T): referred to

Erlax Properties (Pty) Ltd v Registrar of Deeds and Others 1992 (1) SA 879 (A): I dictum at 885B applied

Felix and Another v Nortier NO and Others [1996] 3 All SA 143 (SE): dictum at 153d - j applied

Kruger v Gunter 1995 (1) SA 344 (N): referred to

Lorentz v Melle and Others 1978 (3) SA 1044 (T): referred to

Registrar of Deeds (Transvaal) v The Ferreira Deep Ltd 1930 AD 169: dictum at 180 J applied

2011 (1) SA p119

Willoughby's Consolidated Co Ltd v Copthall Stores Ltd 1913 AD 267: referred to A

Willoughby's Consolidated Co Ltd v Copthall Stores Ltd 1918 AD 1: dictum at 16 applied.

Statutes Considered

Statutes

The Alienation of Land Act 68 of 1981, s 2(1): see B Juta's Statutes of South Africa 2009/10 vol 2 at 1-833

The General Law Amendment Act 50 of 1956, s 5: Juta's Statutes of South Africa 2009/10 vol 2 at 2-822.

Case Information

Application for the amendment of particulars of claim. The facts appear from the reasons for the judgment. C

JW Steyn for the applicants.

DG Dobie for the first respondent.

Cur adv vult.

Postea (October 11). D

Judgment

CJ Claassen J:

[1] In this case the following question requires to be answered: 'Does an oral agreement granting a servitude over immovable property contravene E the writing provisions of the Alienation of Land Act 68 of 1981?'

[2] The first and second applicants are an elderly married couple residing at 72 Fick Road, Florentia, Alberton, Gauteng. Their daughter is married to the first respondent. The first respondent is, therefore, their son-in-law. F

[3] Some time ago the applicants experienced financial difficulties. It was then orally agreed, between them (as owners of the land) and the first respondent, that the latter would purchase the aforesaid immovable property, subject to granting the applicants the right to reside there for the rest of their lives. A written deed of sale was duly completed and the property transferred into the name of the first respondent. Subsequent to G such transfer, strained relations developed in the marriage of the first respondent and the applicants' daughter. The first respondent then sold the immovable property to the second respondent (who is not opposing the relief sought), in disregard of the oral servitude of residence.

[4] The applicants, as first and second plaintiffs, instituted an action H against the first and second respondents, as defendants, claiming registration of the right to live in the house situate on the property for the rest of their lives as a servitude of habitatio. The applicants relied on a right to register such servitude against the immovable property arising from the oral agreement. This agreement is pleaded by the applicants in their particulars of claim as follows: I

'11.

Die eisers aan die een kant en die eerste verweerder en Anna-Marie Koekemoer aan die ander kant, het derhalwe gedurende 1994 en te Alberton 'n mondelinge ooreenkoms met mekaar gesluit dat:

11.1

Die eerste verweerder en Anna-Marie Koekemoer die eiendom sou koop; J

2011 (1) SA p120

C J Claassen J

11.2

A die verbandspaaiemente en ander koste ten opsigte van die eiendom betaal sou word uit die gesamentlike fondse van die eerste verweerder en Anna-Marie Koekemoer;

11.3

die eisers vir die res van hulle lewens die eiendom as hulle woonplek sou kon behou;

11.4

die eiendom op die naam van die eerste verweerder en/of B Anna-Marie Koekemoer geregistreer sou word;

11.5

die eiesers gratis in die eiendom sou woon en geen huurgelde of ander vergoeding betaalbaar sou wees nie, welke insluit eiendomsbelasting;

11.6

die eisers egter wel die maandelikse water- en elektrisiteits C uitgawes sou moes betaal (''die ooreenkoms).' [Own emphasis.]

[5] It is common cause that the immovable property had not yet been transferred into the name of the second respondent when the aforesaid action was instituted.

The first exception D

[6] The first respondent excepted to the applicants' particulars of claim on the basis that it disclosed no cause of action. He raised five exceptions to the particulars of claim. The matter came before Louw AJ, who handed down a judgment on 27 July 2010. In this judgment E Louw AJ rejected the second to fifth exceptions, but upheld the first exception. He made the following order:

'1.

The first exception is upheld with costs.

2.

The plaintiff's particulars of claim are set aside.

3.

F The plaintiffs are, if so advised, afforded 30 days within which to deliver new particulars of claim.'

[7] The first exception was framed as follows:

'1.1

The plaintiffs rely on an oral agreement in terms whereof the plaintiffs allegedly obtained a right of habitation over immovable G property.

1.2

The right of habitatio amounts to an interest in land as defined in s 1 of the Alienation of Land Act 68 of 1981.

1.3

In the premises the oral agreement amounts to an oral agreement for the alienation of land.

1.4

In terms of the provisions of s 2 of the Alienation of Land Act 68 of 1981, H no alienation of land after the commencement of that section would be of any force or effect unless it is contained in a deed of alienation signed by the parties thereto or by their agents acting on their written authority.

1.5

The plaintiffs' particulars of claim accordingly discloses no cause of action in that the agreement upon which they rely is of no force I and effect as it is not in writing nor signed by either of the parties and as such is in conflict with the provisions of the Alienation of Land Act.'

[8] Louw AJ associated himself with the criticism that has been expressed against the judgment in Cowley and Another v Hahn 1987 (1) SA 440 (E) J wherein Mullens J held that a usufructus was a mere personal

2011 (1) SA p121

C J Claassen J

right. [1] This statement of law is clearly wrong. In A Felix and Another v Nortier NO and Others [1996] 3 All SA 143 (SE) it was decided at 153d - j that s 2(1) of the Alienation of Land Act was also applicable to servitudes. MCJ Bobbert, in an article entitled 'Kennisleer'...