‘Morphed servitudes’

June 1st, 2022
Re: Beyers Office Park Body Corporate et al v Honeyridge Centre (Pty) Ltd et al (GJ) (case number 2012/14582, 13-2-2017) (Gildenhuys J) 

By Neels Engelbrecht

The question that was recently decided on, during an arbitration proceeding before former Judge Antonie Gildenhuys, was whether a clearly defined servitude of right of way, registered in the Johannesburg Deeds Office as a notarial deed of right of way, based on a servitude diagram depicting the right of way as such, could be interpreted as a parking servitude.

The facts

The developer of two adjacent commercial properties, Honeyridge Centre and Beyers Office Park in Randpark Ridge, Johannesburg registered a servitude of right of way over the servient property Beyers Office Park (the office park) in favour of Honeyridge Centre (Honeyridge), by virtue of a notarial deed of right of way entered into with himself (the development company).

The registration was one of a batch of deeds included in the opening of the sectional title register and the transfer of the units.

The reason for the registration appeared to be that the Johannesburg City Council required the registration of a parking servitude over the servient tenement in favour of the dominant tenement for the dominant tenement (the shopping centre), to comply with its zoning requirements.

For unknown reasons the conveyancers wrongly registered the servitude as a right of way, for the sake of convenience, based on a surveyor general diagram (SG diagram) depicting the right of way as such.

The owners of the office park were aware of the servitude requirement but did not consent thereto.

In a subsequent application to declare the servitude invalid, alternatively a declaratory that it was indeed a right of way and not a parking servitude, Gildenhuys J found that the right of way could be interpreted as a parking servitude.

The law

The judgment was based, inter alia, on the following:

  • The fact that the owners of the shopping centre were deemed to know of the servitude.
  • The requirement of the city council that a parking servitude had to be registered.
  • The interpretation of the servitude based on the case of Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk 2014 (2) SA 494 (SCA).
  • The Scottish case of Moncrieff and Another v Jamieson and Others 2008 4 All ER 752 (HL).

The judge chose to ignore the South African case on point of Kruger v Downer 1976 (3) SA 172 (W) where Margo J found that where a servitude was clear, but incorrectly registered and, therefore ineffective, the court could not interpret the servitude other than the clear wording of the servitude, namely, the court could not re-write the servitude for the parties.

What Gildenhuys J effectively found is that he could, by using the principles of interpretation, looking at the background circumstances and the intention of only the developer, interpret the right of way as a parking servitude.

This finding is in my view clearly wrong and has far-reaching implications.

For example, in this instance there was no ambiguity or uncertainty regarding the wording of the servitude, furthermore it was based on a SG diagram depicting the servitude as one of right of way.

This effectively means that the judge only considered the background circumstances and the intention of the developer when the servitude was drafted and ignored the clear wording of the servitude.

I submit that this matter is taking the principles, as set out in the Bothma-Batho matter, too far and leads to uncertainty as it means that the wording of any agreement or servitude could be ignored and should only be regarded to the intention of the drafter and the surrounding circumstances.

Van der Walt discusses the decision of Kruger v Downer and agrees with the decision when he states: ‘The principle that the servitude holder must be allowed effective use of the servitude must frame the interpretation of the servitude grant, but it cannot give the courts the power to rewrite the grant if it was badly drafted’ (AJ van der Walt The law of servitudes (Cape Town: Juta 2017) at page 227).

Neels Engelbrecht LLB (UP) is a legal practitioner in Randburg. Mr Engelbrecht is the attorney on record for the applicant.

This article was first published in De Rebus in 2022 (June) DR 30.

De Rebus