Nach Investments (Pty) Ltd v Yaldai Investments (Pty) Ltd and Another

• Jurisdiction: South Africa
• Citation: 1987 (2) SA 820 (A)

Nach Investments (Pty) Ltd v Yaldai Investments (Pty) Ltd and Another
1987 (2) SA 820 (A)

1987 (2) SA p820

Citation	1987 (2) SA 820 (A)
Court	Appellate Division
Judge	Joubert JA, Hoexter JA, Smalberger JA and Kumleben AJA
Heard	February 17, 1987
Judgment	March 26, 1987

Flynote : Sleutelwoorde

Servitude — Of right of way — Constitution of — If constituted by agreement, determination of the route not essential — May be constituted along a specifically C determined route or generally — In latter case, grantee may select a route provided only that he does so civiliter modo.

Servitude — Of right of way — Constitution of — If agreement constituting servitude provides for route to be determinable by agreement, and intention is to define a specific route, the agreement is inchoate and unenforceable D until route is agreed upon — But agreement is valid if a general servitude is intended and a future agreement is referred to because parties contemplate that route will eventually be agreed upon — First respondent as seller and appellant as purchaser agreeing that 'the seller has reserved... a servitude of right of way in perpetuity... over erf E 158... the exact route of which servitude is to be determined by agreement...' — Interpreted to mean that right of way reserved over the erf and, without detracting from that right, route to be determined by agreement — Until so determined, right can be exercised along a route selected by first respondent — Failure of parties to agree on route not resulting in invalidity of servitude. F

Headnote : Kopnota

In an agreement for the constitution of a servitude of right of way, the determination of the route of the servitude is not essential. It has long been accepted that such a servitude may be constituted either along a specifically agreed route (facta partis assignatione, per quam exerceatur) or generally (simplicius per fundum cessa), in which case the entire servient tenement is subject to the servitude and the grantee may select a route provided only that he does so civiliter G modo. It follows that a right of way may be validly constituted without any reference in its formulation to its route.

Where the formulation of the servitude does contain a reference to its route 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 H 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 any given case, the intention of the parties is decisive. It is to I be determined, of course, by interpreting the agreement according to the normal rules of construction.

Applying the above principles, the Court, in an appeal from a decision in a Local Division dismissing an application for an order declaring an agreement whereby a servitude of right of way was constituted to be invalid as being void for vagueness, held that the agreement was indeed valid. The agreement provided that it was recorded that the seller (the first respondent) has reserved... a servitude of right of way in perpetuity... over erf 158... the exact route of which J servitude is to be determined by agreement...' and the Court interpreted the provision to mean, firstly, that the

1987 (2) SA p821

seller had reserved a right of way over erf 158, and, secondly, A without detracting from the right which had thus already been reserved, that the Provision then provided that the route would be determined by agreement. The Court held that the effect of the second part of the provision was that, until the route was determined by agreement, the right could be exercised along a route selected by the seller (the first respondent). The appeal was dismissed.

The decision in the Witwatersrand Local Division in Nach Investments (Pty) Ltd v Yaldai Investments (Pty) Ltd and Another confirmed. B

Case Information

Appeal from a decision in the Witwatersrand Local Division (Curlewis J). The facts appear from the judgment of Hefer JA.

P M Wulfsohn SC (with him A H Burger) for the appellant: A praedial servitude is a limited real right which a person, in C his capacity as owner of a certain tenement (praedium dominans), holds over another tenement (praedium serviens). The servitude is incidental to and passes with the ownership of the dominant land to which it is inseparably attached and burdens the servient land, irrespective of the identity of the owner. See Dreyer v Ireland (1874) 4 Buch 193 at 199. One of the general requirements of the establishment of a right as a D praedial servitude is that there must be two tenements belonging to different owners. See Voet 8.1.2; Van Leeuwen Censura Forensis 1.2.14.11; In re Bennett & Green v The Bank of Africa Ltd (1901) 22 NLR 404 at 407; City Deep v McCalgan 1924 WLD 276 at 279; Van der Vlugt v Salvation Army Property Co 1932 CPD 56 at 59. A right to a servitude may be acquired directly E by contract, or by means of a stipulation for the benefit of a third party, under a last will, by legacy or by reservation on a gift of land, by judgment in a divisory action or in an action brought to assert or to deny the right to a servitude, or by a decree of Court giving effect to an award of arbitrators. See Voet 8.4.1, 8.4.2, 8.4.10; Groenewegen ad Gr 2.36.2; Groenewegen De Leg Abr Ad D 8.3.19; Willoughby's F Consolidated Co Ltd v Copthall Stores Ltd1918 AD 1 at 16; Texas Co (SA) Ltd v Cape Town Municipality1926 AD 467 at 474; Grant and Another v Stonestreet and Others1968 (4) SA 1 (A); Otto v Lategan (1892) 9 SC 250; Erasmus v Erasmus (1893) 7 EDC 196. It may be constituted by means of a deed executed by the owner of the dominant tenement and the owner of the servient G tenement, which deed must be attested by a notary public and registered against the title deeds. Alternatively, it may be constituted in a deed of transfer by means of the reservation therein of the servitude over other land registered in favour of the transferor. Deeds Registries Act 47 of 1937 ss 3(1)(o), 65, 75 and 76; Voet 8.4.1; Van Leeuwen RHR 2.19.1, Censura Forensis 1.2.14.4; Northview Properties (Pty) Ltd v Lurie1951 (3) SA 688 (A) H at 696; Myers v Van Heerde and Others1966 (2) SA 649 (C). It bears mention that an agreement conferring a right of servitude, conflicting as it does with the freedom of the owner of the servient tenement to use his property as he deems fit, will be interpreted strictly and its terms construed in a manner which is least burdensome for him. This is no more I than an application of the principle that the dominus must exercise his rights civiliter modo, which means that the servitude must be exercised in a proper and careful manner so as to cause least inconvenience to the servient owner. See Rubidge v McCabe & Sons and Others1913 AD 433 at 441; Van Heerden v Coetzee1914 AD 167; Gardens Estate Ltd v Lewis1920 AD 144 at 150; Texas Co (SA) Ltd v Cape Town Municipality J (supra at 474); Van Schalkwyk v

1987 (2) SA p822

A Esterhuizen1948 (1) SA 665 (C) at 672; Kakamas Bestuursraad v Louw1960 (2) SA 202 (A) at 217; Pieterse v Du Plessis1972 (2) SA 597 (A) at 599. The rule of interpretation in an action on a servitude, as is one on a contract, is to ascertain not what the parties' intention was, but what the language used in the writing means, ie what their intention was as expressed in B the writing. Such intention must be gathered from the language used by the parties and not from what either of them may have had in mind. See Worman v Hughes and Others1948 (3) SA 495 (A) at 505; Van Rensburg en Andere v Taute en Andere1975 (1) SA 279 (A) at 302G - 303A. Where a servitude is constituted by contract, the rights conferred thereunder must be exercised strictly in accordance with the terms of the C contract. See Cliffside Flats (Pty) Ltd v Bantry Rocks (Pty) Ltd1944 AD 106; Pieterse v Du Plessis (supra at 599). The old authorities and the case law distinguish between two categories of servitude of right of way: (a) via simpliciter ; or (b) a definite or specific route having been agreed upon. In the instant case, a third category arises, being a right of way D agreed upon, being a specific route, which route was to have been agreed upon, but has not been agreed upon. A via may arise simpliciter, as a via ex necessitate, by agreement, by prescription, or the like. No definite route is fixed thereby. The dominant owner has the choice of the route, and the reason for the existence of the choice or route when none has been fixed is formulated in Voet 8.3.8 (Gane's translation in The E Selective Voet, being the Commentary on the Pandects vol 2 at 471). However, for the owner of a dominant tenement to be able to claim the right of via ex necessitate along a specific or defined route, it would be necessary for such servitude to have been duly constituted, for example, by an order of Court, or by prescription, or by any form recognised by the law. See Wynne v F Pope1960 (3) SA 37 (C) at 39F - H. It bears mention that no owner is entitled to claim a right of way along a determined route unless a servitude has been properly constituted, eg by way of prescription, or order of Court, or in any other manner recognised in law, such as registration.

The...