Chapter 17

Servitudes and Restrictive Conditions

Despite ownership being the most compete right regarding property is not absolute.
For it is limited by interests of the community, neighbours and other holders of rights towards the
property.
Such as limited real rights/personal rights provided by statutory provisions or common laws.

Servitude- a limited real rights to movable or immovable property of another, which grants the
holder specific entitlements such as the right to use/enjoy, which can be expressed against the
owner and thus limits their entitlements in respect of the thing

Pearly Beach Trust v Registrar of Deeds- the entitlements of the owner are limited by the
entitlements of the servitude holder on the basis of his limited real rights.
 The owner does not relinquish or transfer their entitlements to the servitude holder,
instead the granting of the servitude results in limitations on the owner’s rights
 The servitude holder may exercise the rights they have over the thing

In South African law, it is a requirement for the creation or transfer of a limited real property
right that registration in the Deeds Office must take place in terms of section 63 (1) of the
Deeds Registry Act 47 of 1937

Willoughby’s Consolidated v Copthall Stores- If a landowner, by way of an agreement,

grants certain rights of use or pleasure to a person who is not registered in the Deeds Registry,
the use and enjoyment powers in this case are based on the right of claim under the agreement
between the landowner and the right-holder,
 the rights are derived from the personal rights the holder has towards the owner and not
from limited re
 if these rights of enjoyment meet the requirements of the subtraction from the dominium
test, it may be registered and a servitude constitutes a limited real right after registrations

Difference between a servitude which was made by registration at the registry

and one unregistered agreement, comes into relevance with the ability of enforceability.
 Registered- allows holder to enforce rights against successors of the owner
 Unregistered- only against the owner
• It is also possible that these rights are so closely related to a registerable limited real right
that the creditor rights are registered together with the limited real right under the proviso
contained in section 63 (1) of the Deeds Registry Act 47 of 1937. However, the creditor
rights are not transformed into limited real rights.

Explosive Works Ltd v Denel- cancelation due to mistakes within registered servitudes are still
valid and enforceable, due to:
• the application of a negative registration system in South Africa there is no guarantee for the
correctness of the registered data or documents
• such errors can be corrected by means of a court order

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Characteristics of Servitudes:
1. The servitude acquired a limited real right in the case of another legal subject which
they can protect and enforce with a real remedy (actio confessoria)
The servitude is enforceable against the owner of the case and all his successors.

2. The servitude holder cannot expect the owner of the case to perform any positive action
with the matter in terms of the servitude. The servitude only grants use and enjoyment
powers to the servitude holder who must be respected by the owner of the case .

3. No person can gain a servitude over their own property.

4. A servitude may not transfer the servitude to another person - Lorentz v Melle

5. The entitlements held by the servitude holder must be exercised reasonably, which is
determined by the actions of a reasonable man (bonus paterfaminias)

Types of servitude:
1) Praedial servitudes (heritage services) –
A. a limited real right
B. the land of another legal subject (the servient tenement)
C. which grants certain rights of use and enjoyment to the servitude holder
D. in his capacity as owner of the dominant tenement
 Praedial servitudes is only towards immovable property
 there is always a dominant and servient tenement
 the holder of the servitude is the owner of the dominant tenement, allowing them to
exercise the entitlements of use and enjoyment resulting from the servitude with regards to
the servient tenement in his capacity as owner of the dominant tenement, the owner of the
servient tenement must tolerate the exercise of the entitlements by the holder of the
servitude.
 The limited real rights vested in the holder of the servitude in his capacity as owner of the
dominant tenement, allow the successors in the title of the owner of the dominant
tenement are automatically entitled to the servitude- servitude to ‘run with the land’
 However, a Servitude is not transferable in the sense that it is a person is
transferred to another person.
 The burden against the servient tenement is transfer to the new owner automatically (in
his capacity as owner) upon transfer of the land. It is therefore a burden on the property
and is enforceable against the owner of servient tenement and their successors in title.
 Special servants are in principle everlasting, but may be made in terms of section 76 (1) bis
of Deeds Registries Act 47 of 1937, subject to a term or dissolving condition.
 The dominant and servient tenements must be located next to or near one another
 A benefit that increases the utility and usefulness of the dominant tenement must vest in
the owner of the dominant tenement and his successors. In principle this should hold a
perpetual benefit for the dominant tenement. It is called the utilitas requirement. In De
Kock v Hnel it is decided that the servitude should bring about a permanent benefit for

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 the dominant tenement and not just for the personal pleasure or caprice of the owner of
the land
 In principle, servitude is indivisible. The only exception is the subdivision of the servient
tenement where partial liberation can take place because not all parts of the servient
tenement can be serviced to the dominant tenement or not all portions of the dominant
tenement can normally benefit from the servitude.
 The entitlements of servitude holder can never be such that the owner of the servient
tenement is compelled to perform a positive act. There is only an obligation on the owner
of the servient tenement to tolerate servitude's entitlements (positive's servitude) or to
allow certain conditions on the servient tenement to continue for the benefit of the holder
of the servitude (negative's servitude).
 This is usually achieved by registering it in the Deeds Office by incorporating it
as a condition clause in the title deed of the servient tenement. It may also come into
existence by registering a deed in the deeds and making an endorsements m distance to
the title of the servient tenement

Categories of praedial servitudes:

1. Rural praedial servitudes-
i. The right of way- this is the right of an owner of the dominant tenement to drive and
transport products over the servient tenement within reasonable bounds, as seen in Nach
Investments v Yaldai Investments, this extends to family members and visitors

ii. Right to lead water- this is the right to draw water, which includes the right to water
livestock on the servient tenement, the right to lead water over servient tenement to the
dominant tenement, the right to fetch water on the property of the servient
iii. The right to outspan or grazing
iv. The right to fetch wood

2. Urban praedial servitudes-

i. The right holder of the servitude that his building may be supported by a building on the
servient tenement
ii. The right holder of the servitude to insert a bea, of his building into the building on the
servient tenement
iii. The right holder of the servitude that his building may encroach on the boundary of the
two tenements
iv. The right to have pipes or electrical cables installed over the servient tenement
v. The right to influence the normal flow of rain water

3. Statutory praedial servitudes-

I. The right to dam, drain, store and lead water in terms of the National Water Act
II. The servitude in respect of support in terms of the Sectional titles Act
III. The right to extend a scheme in terms of the Sectional titles Act

2. Personal Servitudes
A. a limited real right
B. the movable or immovable property of another legal subject
C. which confers certain uses and competencies (content competencies) for the purpose of
the matter
D. to the servitude holder in his personal capacity.
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  A personal servitude accurses to the holder of the right in her personal capacity, as limited
real rights it must meet the requirements that are set for the creation and execution of
a limited real right. It must therefore limit the owner's property rights (dominium) and be
enforceable to the owner, her successors and third parties.

 Willoughby’s Consolidation v Copthall Stores- Since it belongs to the servitude in her

personal capacity, the servitude is not transferable, however, the holder of the servitude
can allow another to exercise certain elements to the thing in terms of an agreement

Cowley v Hahn 1987 . -NB

"A usufruct is a personal right, held by the usufructuary only, to the use of the property and its
fruits.”
 It does not diminish the rights of the ownership such as real or praedial servitudes
 Benefits accruing from the property, but do not diminish it in any way or any rights of the
owner or the dominium form part of the estate of the servitude holder

The judge fails in 2 respects:

A usufruct is a burden on the matter, taking into account the owner's property rights
(dominium) and limiting all of the owner's successors and rights of third parties. It thus affords
content rights to the usufructuary in respect of the matter which in all respects complies with the
subtraction from the dominium test.

As it limits the owner's dominium and is enforceable to its successors and third parties, it
is a limited right and not a claim persona / right, even if it allows the usufructurer in her personal
capacity
Types of personal service de
A. Common law personal services (usufruct, use, occupation).
B. Servitudes which resemble real servitude but which vest in the holder of the right in his
personal capacity
C. Statutory personal services

Usufruct- is a personal servitude that as limited real right, grants the holder the
right to use another person's case (including the fruit) and to return the thing substantially intact
tot the owner on termination of the usufruct.

Requirements:
1) Can be granted to both movable and immovable or an immovable of both types of property
2) Can be granted to both consumable and non-consumable products
3) If quasi-usufruct (consumables) are used they must be replaced with a thing of the same
value as the ones used
4) Can be granted with regards to incorporeal things
5) If they are granted with regards to minerals which renew themselves, the minerals become
the property of the usufructuary once collected.

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Concept of the right:
1) The primary element of the usufruct is the enjoyment and use of the thing
2) The usufructuary is entitled to the fruits of the thing
3) The use, enjoyment and collection of the fruits must be done within a reasonable time
period
4) The usufruct is not transferable
5) A usufructuary may mortgage the immovable property or pledge the movable property with
the consent of the owner
6) Usufruct may be granted on a conditional basis

The obligations of the usufructuary

 A non-consumable thing must be returned on termination of the usufruct while retaining its
essence (Salva rerurn substantia), excluding reasonable wear and tear. In the case of
consumables, cases of equivalent quantity and quality must be returned.

 The usufructuary must use the thing reasonably and must maintain the thing with the
necessary care
 In the case of movable property, the usufructuary must draw up an inventory of all matters
relating to the usufruct.
 If the owner so requires, the usufructuary must provide security which guarantees that the
matter will be returned to his own while retaining his or her property in return for the
usufruct .
 The usufructuary is obliged to suffer all expenses relating to the conservation of matter,
behaving l we in cases where the owner has undertaken or agreed to pay the maintenance
costs.

Use-is a limited real right in terms of which the person entitled to the right acquires the ability to
use the matter while retaining the essence for the benefit of himself and his or her household.
 Use is a more limited right than usufruct. The competences of the land use may not be
exercised by any person other than the holder of the servitude
 The user is entitled to collect as much fruit as required by him and his companions for daily
use. Fruit may not be sold or donated to third parties.
 The case must be returned to the owner upon termination of the right of use while
retaining the essence thereof.

Habituation- is a limited real right that empowers the person entitled to

occupy an owner's house while retaining the essence of the house.
 The controlling power, as in the case of usufruct and use, does not collect fruit.
 However, by the agreement of third parties, the controlling power allows him to
exercise certain content rights arising from the right of occupation, but the personal
servitude itself is not transferable.

Servitudes which resemble praedial servitudes:

Rights which resemble praedial servitudes can in fact be a personal servitude if the right can be
exercised only by the holder of the servitude in their personal capacity. Thus, still a limited real

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right since it can be enforced against the owner and all their successors in the title, but it bests in
the holder of the servitude in their personal capacity and not in their capacity as an owner of a
dominant tenement.

Statutory personal servitudes

 A right to tension electrical power wires - Article 19 of the Electricity Act 41 of 1987.
 A right of extension in terms of section 25 of the Sectional Titles Act 95 of 1986.
Although this right only accrues to a particular servitude holder, it is different from that of
normal personal servants .

Interpretation of servitudes:
• It is sometimes difficult to determine whether a servitude agreement or will create a personal
or personal servitude.
• It is therefore very important that a servitude agreement or testament must be such that it is
clear what the parties intended - Willoughby's Consolidated Co. Ltd v Copthall Stores Ltd 1918
(AD).

If there is doubt as to whether a servitude is of a personal or personal nature, the

following rules and suspicions apply:
 The general rule is that servitudes are construed restrictively -Glaffer Investments (Pty) Ltd v
Minister of Water Affairs and Forestry.
o The burden is therefore on the claimant to a servitude to prove on a balance of
probabilities that the servitude exists because there is a rebuttable presumption that
property is unencumbered.
 In terms of the interpretation rule, words are given their ordinary grammatical meaning.
 If there is a conflict between the parties or the mutual agreement between the parties is that
only claim rights arise between the parties and whether it is a servitude agreement for the
purpose of establishing a servitude after registration, the rebuttable presumption is that only
claim rights are envisaged (the least compelling explanation).
 In the case of doubt or a real servitude or a personal servitude arose, money the rebuttable
presumption that it is a personal servitude (the least onerous interpretation).
 The least compelling explanation is only followed in cases where there is doubt - De Kock v
Hnel

Criterion of reasonableness
• The reasonableness measure in exercising servitude powers implies that the servitude holder
must exercise these powers within reasonable limits (civiliter modo),
 The criterion used is the manner in which a reasonable man (bonus pate r familias) will act.
• The consideration of the interests of both parties is therefore always the criterion.

This means the following:

o The owner of the property is entitled to use his property in a normal manner - De Witt v
Knierini in so far as it is not in conflict with the servitude powers.
o The servitude is entitled to exercise their entitlements within reasonable limits ( civiliter
modo) - Brink v Van Niekerk. If, however, a conflict of interests arises, the interests of the
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 servitude holder prefer the owner of the property, taking into account the reasonableness
measure - Kakamas Bestuursraad v Louw

Acquisition of Servitudes
1) Registration of real and personal servitudes in respect of immovable property in terms of
the Deeds Registry Act 47 of 1937.
2) Delivery in the case of personal servitudes on movable property.
3) Statutory establishment.
4) Establishment through a court order.

registration
o Limited real right in respect of immovable property arising under section 63 (1) of the
Deeds Registries Act 47 of 1937 on registration thereof in the deeds

Willoughby's Consolidated v Copthall Stores

 Now a servitude, like any other reals right, maty be acquired by an agreement.
 Such an agreement, while binding the parties on the contracting basis, does not by itself
vest legal tittles to the severed in the beneficiary.
 The court held that between two part y e that is not registered, only result in legal claims
between the parties is not enforceable against their successors or thirds.
 Of a contractual right amounts in any given case to a servitude - whether it is real or only
personal - depends on the intention of the parties to be collected from the terms of the
contract construed in the light of the relevant circumstances.

Van den Berg v Van Tonder ruled that the owner of the servient tenement must of tolerate the
other persons entitlements to use, deepening registration (if the parties had the intention that
registration should take place) and is liable for damages if the agreement is not complied with.

Thirds are not normally bound by the servitude by unregistered servitude agreements between
the contracting parties.
However, In terms of the application of the theory of knowledge a third who had knowledge
(actual or imputed) of the agreement under which competences granted to the contracting party
can be bound to the terms of the agreement (the third is not a party not). Prior to registration of
the property in the name of the new owner (who is aware or unaware of the unregistered
servitude agreement) the knowledge learning is not applicable and the servitude rights holder is
entitled to the prior in-temporal principle

Grant v Stonestreet
Unlined English law, the doctrine of constructive knowledge has, in SA law has no application in
enquiries of this kind, the statement… that if a person wilfully shuts his eyes and declines to see
what is perfectly obvious, they are held to have actual notice, appears to me to be sound in
principle and to merit the approval of the court’
 The facts in this case provide a good illustration of the application of doctrine of notice

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  A Right of water pipe already in the form of over 1,865 by means of an agreement
between the owners of farm A (the "dominant land) and place B (the" servient tenement ")
arise, despite that has never been registered in the Deeds Office .
 The legal successor to the contracting owner of Farm B (the "severance tenement) did not
have any knowledge of the aqueduct and it was never enforced against him
 However, the subsequent successor to farm B did know the written servitude creation
agreement.
 When the owner of the farm A (the "dominant tenement) by way of a court order at B, to
enforce the right of aqueduct was only a credit right in terms of the unregistered servitude
agreement.
 As the creditors right was only enforceable between the original contracting parties and
had also been terminated since the successor in the tile of the contracting owner of farm B
had knowledge of the agreement:

The court held:

A. The unregistered serviced agreement was enforceable between the contracting parties
B. As the successor in the title to the contracting owner of farm B had no knowledge of the
agreement and was not enforceable against him
C. The next successor in the title of farm B was aware of the agreement, thus the contact was
enforceable against him
D. The doctrine of notice would be applicable only if the contacting parties intended to bind
their successors in title.
E. In Hassa m v Shaboo held that the mere knowledge by the buyer of property was aware
that another person had a right to the property was sufficient to enforce such a right
against the purchaser
F. The doctrine of notice was not applicable to creditor’s rights of purely personal nature, but
only in personam ad rem acquirendam, which were rights against the owner to obtain a
real right by registration- Vansa Vanadium SA Ltd v Registrar of Deeds)

1. The inclusion of the entitlement or allowance resulting from a will or agreement in the
conditional clause of the deem of transfer of immovable property that is encumbered
2. Registration of a notarial deed in the deeds registry in which praedial or personal servitudes
are set out
a. The notarial deed is written document in which the agreement is set out and which
is signed by the parties before the notary
b. Registration of the notarial deed must be noted in the title deed of the servient
tenement

Delivery- when the personal servitudes are movable property and the property is made available
to the holder of the servitude in such a way that it enables them the exercise their entitlements
 The owner of the thing retains the intention to be owner at all times, but delivers the thing
with the intention that the holder of the servitude can exercise their entitlements
 A written agreement is not required
 An oral agreement must makes place to satisfy the burden of proof- Du Randt v Du Randt

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Legislation- In terms of section 2 (1) of the Prescription Act 18 of 1943 and section 6 of the
Prescription Act 68 of 1969, a personal or personal servitude may arise through prescription.
Article 6 provides:
A person gets a servitude by prescription if he openly and as if he is entitled the rights and powers
that someone deserves at such a servitude is entitled exercised, for an uninterrupted period of 30
years, in which case a praedial servitude, for a period which together with any period for which
such rights and powers were so exercised by their predecessors in the title, constitutes an
uninterpreted period of 30 years.
 The same requirements as for the original acquisition of property rights by limitation apply
also in the event of the establishment of a servitude by limitation.
 The only difference in principle is that possession for the purposes of acquisition of
property is classified as possessio civilis, while the requirement of ownership in the case of
the establishment of a servitude is quasi possessio, namely:
1. the exercise of the servitude powers as if the person is entitled to it,
2. with the intention of exercising it as a servitude warrant.
3. The use of another person’s property with their consent in contraction to the nec precario
requirements and persecution cannot run during the period of consent
However, in order to ensure legal certainty, it is preferable to register such servitude after its
establishment (after the limitation period) in the Deeds Registry.

Expropriation-In terms of section 25 of the Constitution and sections 4 and 15 of the

Expropriation Act 63 of 1975, a servitude can be established by expropriation.
 The same requirements as in the case of property acquisition by expropriation apply here

Other legislation by which servitudes arise :

1. National Water Act 36 of 1998;
2. Sectional Titles Act 95 of 1986 (sections 28 and 31);
3. Electricity Act 41 of 1987 (Article 9);
4. Legal Succession of South African Transport Services Act 9 of 1989 (Annex 1, items 7 and
9).

Court order -A servitude that arose through prescription is often enforced by a court order
or a person who fails to register a servitude in terms of a servitude- creating agreement may be
required to register by a court order.

Necessity-A landowner who has no or inadequate access to a public road, can

obtain an emergency road through adjacent landmarks to the nearest public road through a court
order

Van Rensburg v Coetzee:

Emergency Response-A landowner of an enclosed property is entitled to access to the nearest
public road on landowners' land plots.

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  This applies not only in cases where the property is completely cut off from a public road
but also where available alternative routes do not satisfy the economic needs of the
property.
 is not for the sake that the reason for the emergency route has just occurred
or exists for a long time.

The nature of the Necessity

 The court may, depending on the circumstances, make an order that the emergency road
may only be used in emergency situations (ius viae precario) or on an ongoing basis (ius
viae plenum).
 However, due to the demands of today's farming conditions, it is unlikely that a route will
only be required in emergency situations.
 Determination of the property to be covered by the emergency road
 The general principle that is applicable is that the nearest route which causes the least
damage and inconvenience to the owner of the mortgaged property will be designated as
an emergency road.

Determining the route and the width of the road

 Also h ere the principle that the nearest route cause the least damage to the owner of the
mortgaged plot, be overly l g should be.
 The interests of both landowners are reasonably taken into account when determining the
route and the width of the road.
Compensation- not normally payable in the case of ius viae precario, but in the case of a
plenary session, reasonable compensation is usually payable.

Registration- not a requirement for real action to a necessity, That by devoting 's of a court
order arising hours not to grant et. However, it is desirable that registration be given to the
court order in order to promote legal certainty.

REMEDIES
1. Available to the servitude holders:
The actio confessoria is a criminal offense against which the servitude holder may prevent any
restrictions or impediments on the reasonable exercise of his or her servitude by means of a court
order. Damages can also be claimed with this action.
o an interdict
o An declaratory order
o A spoliation order to effect restoration of control
o A delictual claim for damages
2. The owner of the best w earth matter, the following remedies at its disposal:
o The actio negatoria is an action against a servitude holder who exceeds his servitude
powers or any other person who claims to be unlawful on servitude powers.
o an interdict
o A declaratory order

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 oA delictual claim for damages

3. Termination of servitudes
o Fulfilment of condition or term
o Merger
o Abandonment
o Impossibility
o Prescription
o expropriation
• Fulfilment of condition or term
Both the praedial and personal servitudes grant subject to the fulfilment of the condition, for a
certain period are terminating in the condition is fulfilment or if the period ends.
o Personal servitudes expire at death (natural person) or dissolution (juristic person) of the
servitude holder or after 100 years ( spouse).

• Merger
o In terms of the principle that no person can have a servitude over their own property, if
a servitude is terminated when the holder becomes the owner

• abandonment -A servitude holder may explicitly or tacitly waive the seat of the estate in favor
of the owner.
o Implied waiver occurs when the servitude allow the owner or a third party acting such that
it is impossible to exercise the servitude and the servitude take steps to protect the
servitude.
o If it is a registered servitude on an immovable property, cancellation of the servitude in the
Deeds Office is necessary in order to ensure legal certainty towards third parties - Cowley v
Hahn
Cancellation in the deeds done do using a notarial deed.
RESTRICTIVE CONDITIONS
1. restrictions (in certain limited real rights)
2. based on succession or contractual origin which can be registered against urban or rural
land
3. which is registered at the erven in a particular township during the township establishment
by the initial township owner or developer (restrictive conditions in respect of land) or
4. by statutory measures without registration be applied to urban and rural land
pieces Statutory retractive conditions)
5. which limits the contents of the owner of such land.

• Under restrictive conditions in the narrow sense, it is distinguished between :

o personal limitation conditions, where a benefit due to the restrictive condition is a person in
his personal capacity; and
o Case of restrictive conditions, where a benefit all other property owners in a future
township in their capacity as property owners.

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• Remedies
o an interdict;
o a delictual claim for compensation
o application to the provincial authority for the removal of the restrictive condition in terms of
the Removal of Restrictions Act 84 of 1967.

PUBLIC SERVICE FEATURES

• Definition
o A Public bondage grants certain powers to the general public in respect of a defined plot or
plots of land, which limits the owner's property powers.
It is not servitude, since it is not in favour of a being and therefore not registered specific
person (natural person or legal entity)
o There is not a dominant and a servient tenement, thus we not be classified as real
servitudes.

• It arises in the following ways :

o A reservation in favour of the public in an allocation or alienation of state land.
o The use of a road by the general public in terms of the National Road Traffic Act 93 of 1996
and the respective provincial laws.
o Registration of a notarial lease .
o Registration of a will containing provisions in the deed from the estate to the heir.
o Unfortunate use (fat box), which indicates the exercise of the jurisdiction over the land for
such a long period that there is no knowledge of the public of another state of affairs -
Forellendam Ltd v Jacobs Bay Coastal Farms

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