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Lorentz V Melle and Others 1978 (3) Sa 1044 (T)
Lorentz V Melle and Others 1978 (3) Sa 1044 (T)
South African Law Reports, The (1947 to date)/CHRONOLOGICAL LISTING OF CASES – January 1947 to July 2023/1978/Volume 3: 797 1110
(September)/LORENTZ v MELLE AND OTHERS 1978 (3) SA 1044 (T)
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LORENTZ v MELLE AND OTHERS 1978 (3) SA 1044 (T)
1978 (3) SA p1044
Citation 1978 (3) SA 1044 (T)
Court Transvaal Provincial Division
Judge Viljoen J, Human J and Nestadt J
Heard April 5, 1978; April 6, 1978
Judgment June 15, 1978
Annotations Link to Case Annotations
Flynote : Sleutelwoorde
Servitude What constitutes Portions of a farm held in coownership Coowners conferring rights on each other that, if township laid out by
one, the other and "his heirs, executors or assigns" entitled to half the B profits from the sale of erven Such condition registered against co
owners' title deeds and those of later subdivisions of the land Right created by the condition a personal one and not to be equated with a
praedial servitude Not capable of becoming a praedial servitude by reason of registration The meaning of the expression "his heirs, executors
or assigns" not decided.
C Servitude Creation of Principles relating to restated.
Headnote : Kopnota
Prior to their acquiring a farm in coownership, V and L had executed a notarial deed whereunder they agreed to a division of part of the
property so that V would receive transfer of portion "B" of the middle portion of the farm and that L would receive transfer of the contiguous
portion "A" thereof. The remainder was to remain their joint property. The deed D further provided that V and "his heirs, executors and assigns"
should have certain other rights over portion "A". The deed then provided that "if L lays out a township on his portion V shall have onehalf of
the net profits arising from the sale of such township payable from time to time as each lot or erf is sold... but V shall not be entitled to any
share in such profits until L shall have reimbursed himself for all expenses of E such township out of the proceeds of stands sold...". The deed
provided for the same rights in favour of L over the portion registered in V's name. The notarial deed was registered simultaneously with the title
deed and therefore amounted to it being registered against such title deeds. The provisions of the notarial deed had continued to be registered
against the title deeds of the owners of certain of the subdivisions of both V's and L's portions, including the subdivisions registered in the
names of F appellant and respondents. First respondent had applied for an order declaring, inter alia, that the rights created by the township
clause were personal rights which were only transmissible to their heirs, executors, administrators and assigns. A single Judge had granted the
application. In an appeal,
Held, that the rights created by the deed were personal ones sounding in money and could not be equated to a praedial servitude; and that
the G sanctity of the deeds register had to yield to the need for deleting the incorrect registration of a contingent personal right.
Held, accordingly, that the township clause conferred only personal rights which, even on their incorrect registration, were not capable of
becoming and did not become a praedial servitude.
The meaning of the expression "his heirs, executors or assigns" not decided.
The principles relating to the creation and the nature of servitudes H restated.
Case Information
Appeal from a decision of a single Judge. The facts appear from the reasons for judgment.
K van Dijkhorst SC (with him J P Roux SC) for the appellant.
F C KirkCohen SC (with him M M Joffe) for the first respondent.
Cur adv vult.
Postea (June 15).
1978 (3) SA p1045
NESTADT J
Judgment
NESTADT J: This is an appeal from the grant by a single Judge sitting in the Transvaal Provincial Division of certain declaratory orders in favour
of the present first respondent (then the applicant). In the proceedings in the Court a quo there were 21 respondents. Only the tenth
respondent A has appealed. He was the only person who opposed the application. The 20 other respondents who have been cited in this appeal
have no interest in it. I refer to the parties by their designations in the Court below save that the tenth respondent will (in the main) be called
"the respondent".
The basic facts appear from the applicant's founding affidavit to her B application and they are not in dispute. During 1905, Johannes Gerard
van Boeschoten, the father of the applicant, and one Henricus Lorentz, the father of the respondent, were about to acquire in coownership
certain immovable property situate in the district of Pretoria and being the remaining portion of the middle portion of the farm Zwartkop. Prior to
registration of the farm in their names, they, on 7 April 1905, executed a C notarial deed. In terms thereof the parties recorded that they had
agreed to a division of a portion of the property to be acquired so that Van Boeschoten would receive transfer of portion "B" of the middle
portion of the farm, whilst Lorentz would receive transfer of the contiguous portion "A" thereof. The remainder of the ground was to remain their
joint D property. Registration in this manner took place on 5 June 1905. Simultaneously the notarial deed was registered in the Deeds Registry,
Pretoria. This obviously amounted to it being registered against the title deeds of the two portions.
The dispute between the parties turns on the nature of the rights E conferred by the notarial deed and the transmissibility thereof. Its object
was to give to the respective parties certain rights to or over that portion owned by the other. The preamble reads:
"Whereas the appearers have agreed that the portions 'A' and 'B' shall enjoy and be subject to certain rights and restrictions and it is necessary and advisable
that these rights and restrictions shall be fully set forth and determined."
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F Then the following declaration is made:
Pretoria. This obviously amounted to it being registered against the title deeds of the two portions.
The dispute between the parties turns on the nature of the rights E conferred by the notarial deed and the transmissibility thereof. Its object
was to give to the respective parties certain rights to or over that portion owned by the other. The preamble reads:
"Whereas the appearers have agreed that the portions 'A' and 'B' shall enjoy and be subject to certain rights and restrictions and it is necessary and advisable
that these rights and restrictions shall be fully set forth and determined."
F Then the following declaration is made:
"That Johannes Gerard van Boeschoten his heirs, executors, or assigns shall have the following rights over the portion marked 'A' abovementioned which is to
be transferred to Henricus Lorentz."
Van Boeschoten's rights in Lorentz' portion are thereafter set out. These relate to minerals, a right of preemption, grazing, hunting, the right
to G dry wood, water and a right of way. Then, there is the vital clause which reads as follows:
"2. Township
If Henricus Lorentz lays out a township on his portion of the farm, Johannes Gerard van Boeschoten shall have onehalf of the net
profits arising from the sale of such township payable from time to time as each lot or erf is sold as hereinafter provided, but
Johannes Gerard H van Boeschoten shall not be entitled to any share in such profits until such time as Henricus Lorentz shall have
reimbursed himself for all expenses of such township out of the proceeds of stands or erven sold by him.
Henricus Lorentz shall keep proper books and render prompt accounts to Johannes Gerard van Boeschoten twice in every year
immediately after and up to 30 June and 31 December, and shall pay out at the same time such amounts as may be due to the
said Johannes Gerard van Boeschoten.
Johannes Gerard van Boeschoten shall be entitled to examine in person or through his agent at all reasonable times the books, accounts
and vouchers relating to such township.
1978 (3) SA p1046
NESTADT J
And Henricus Lorentz hereby specially promises to place all the information in his possession at Johannes Gerard van Boeschoten's
disposal."
By means of the following clause Lorentz in his turn was given the same rights over Van Boeschoten's portion:
A "9. The appearers further declared that Henricus Lorentz his heirs, executors, order, administrators or assigns shall exercise similar rights and be subject to
the same conditions in connection therewith over the said portion of ground marked 'B' which is about to be transferred to Johannes Gerard van Boeschoten."
The last paragraph states:
"Except in regard to these rights of 'hunting' 'grazing' and 'dry wood' B wherever mention is made of Henricus Lorentz or Johannes Gerard van Boeschoten
these names shall include their heirs, order or assigns."
In regard to the rights referred to, the clause immediately preceding reads:
"11. Finally the appearers declared that the rights in regard to grazing, hunting and dry wood shall cease ipso facto so soon as either of the appearers or his
heirs shall sell to strangers."
C In 1922 the notarial deed was amended by a further notarially executed and registered document entitled "Deed of Amendment of
Servitudes". Certain of the preambles record the following:
"And whereas the appearers did on 7 April 1905 enter into a deed of agreement before the notary public, William Robert Kennerley of Pretoria, D whereby
certain rights and servitudes affecting the said properties were reserved and regulated as will more fully appear from the said deed registered in the Deeds
Office at Pretoria under No 139/1905 S on 5 June 1905. And whereas the appearers have now decided and agreed with each other to cancel certain of the said
rights and servitudes and to amend others as contained in the said deed of agreement No 139/1905 S."
The rights cancelled were those of preemption, grazing, hunting and dry E wood. The rights of water were regulated by an entirely new clause.
The "Township" clause was slightly amended (by means of the cancellation of the relevant provision in the 1905 deed and the substitution of a
new clause). The latter, however, is in the same terms save that the right of reimbursement was to be in respect of "the cost price of the land
and all F expenses of such township". A further (inconsequential) provision is the penultimate one which is framed in slightly wider terms than its
sister clause in the 1905 agreement. It reads:
"5. Wherever in this agreement mention is made of the names of the appearers Henricus Lorentz and/or Johannes Gerard van Boeschoten, they shall include
their heirs, executors, administrators of assigns."
G The word "of" before "assigns" should obviously read "or". The previous case of the word "order" falls away and in its place there is reference
to "executors, administrators".
By the time Van Boeschoten and Lorentz had died, the former in 1937 and the latter in 1945, their respective portions had been subdivided into
a number of smaller units. The respondent is presently the registered owner H of three subdivided portions forming part of what used to be
Lorentz's portion. One part, being the remaining extent of portion 201, was an inheritance from his father. A second piece, being portion 203,
was acquired by way of a donation made to him by his nephew who was the eleventh respondent in the Court a quo (and who had acquired it
as an heir of his parents to whom it had been donated by Lorentz). The third portion, being the remaining extent of portion 197, was donated to
him by his father. The applicant is the owner of the remaining extent of portion 121 of portion "B" (being a subdivision of her late father's
portion).
1978 (3) SA p1047
NESTADT J
This, she in effect (I use this expression in order to simplify the facts) acquired by way of inheritance from him. Most of the other respondents
cited by the applicant in the Court below (being the first to ninth, 11th and 15th respondents) are owners of other subdivisions previously
forming A part of Lorentz's portion. They respectively acquired their title by purchase from persons who in one way or another had become
owners of the subdivisions of Lorentz's land. The remaining respondents to the application were nominal parties in the sense that no relief was
sought against them; they were cited only because of the interest they might have B had in the orders sought by the applicant. One of them
was the Registrar of Deeds who reported that he had no objection to the granting of the order as prayed.
The provisions of the notarial deed of 1905, as amended in 1922, have continued to be registered against the title deeds of the owners of
certain of the subdivisions of both Van Boeschoten's and Lorentz's C portions. Such owners are in the main the applicant and the respondent
and the first to ninth, 11th and 15th respondents in the Court below. Thus, there appears in applicant's deed of transfer reference, inter alia, to
the township clause to which I have referred. It in terms purports to entitle the applicant to claim from and to oblige her to pay over to the D
owners of subdivided lots in what was Lorentz's portion, half the net profits from the sale of erven in any township laid out on her land or the
subdivisions of Lorentz's land as the case may be. The condition is stated to be in favour of and binding on the owners of portions "A" and "B".
It is alleged in the founding affidavit that the applicant intends to E alienate her portion to a company for the purposes of establishing a
township thereon. No doubt motivated by her desire in these circumstances to ensure that the purchaser will not be obliged to pay over half
the profits which may accrue to it from the establishment of a township, the applicant avers the following in her founding affidavit: that the
rights created by the notarial deeds of 1905 and 1922 were personal only to Van F Boeschoten and Lorentz and their "heirs, executors,
administrators and assigns"; that such rights were only transmissible to person falling in these categories; that accordingly those respondents in
the Court below owning subdivisions in what was Lorentz's portion, not being heirs, executors, administrators or assigns of Lorentz, have no
right to claim G from the applicant (or her successors in title) under the notarial deeds (save in the case of the respondent insofar as he claims
as owner of the two portions which he respectively acquired as heir of and donee from Lorentz). In an amended notice of motion the applicant
claimed appropriate declaratory orders and in particular: (i) that the township clause created personal rights to Van Boeschoten and Lorentz
which rights were and are H only transmissible to their heirs, executors, administrators and assigns (para 1 of the notice of motion); (ii) that
those respondents owning subdivisions of what was Lorentz's land and their successors in title have no such rights against the applicant or her
property (save that in the case of the tenth respondent, the order sought is confined to the property (being portion 213) which was donated to
him by his nephew) (paras 2, 3 and 4); (iii) that the condition in the respondents' title deeds that
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NESTADT J
which rights were and are H only transmissible to their heirs, executors, administrators and assigns (para 1 of the notice of motion); (ii) that
those respondents owning subdivisions of what was Lorentz's land and their successors in title have no such rights against the applicant or her
property (save that in the case of the tenth respondent, the order sought is confined to the property (being portion 213) which was donated to
him by his nephew) (paras 2, 3 and 4); (iii) that the condition in the respondents' title deeds that
1978 (3) SA p1048
NESTADT J
"the owners of portion 'A' of the middle portion of the said farm, are entitled to a half share in the profits derived from the sale of a township on portion 121 of
portion 'B' of the middle portion held under deed of partition transfer 18504/1939"
A confers no rights on the respondents or their successors in title against the applicant or her property; (save that in the case of the tenth
respondent it is confined to his title deed in respect of portion 203) (para 5); (iv) that in the event of the applicant transferring her property
inter vivos or it being transferred in consequence of her death such transferees will not be heirs, executors, administrators or assigns of the late
Johannes Gerard Van Boeschoten (para 6). In terms of para 7 of B the notice of motion an order authorising the Registrar of Deeds to note the
provisions of the Court order against the title deeds of the parties was also sought. These were the order which were granted and against
which (insofar as they relate to him) the respondent appeals. He also appeals C against that part of the order that he pay the costs of
opposition to the application (including the costs of two counsel). I should have mentioned that in an answering affidavit he denied the
applicant's right to the orders sought. It is averred that the notarial deeds were intended to be binding on the "assigns" of the property in
perpetuity.
D Respondent's case, as advanced before us, was based on two alternative submissions. The first was that what was created by the notarial
deed was a praedial servitude. In this event, the applicant was not entitled to any of the orders sought. The second was that, even if mere
personal rights and obligations came into existence, these were freely transmissible to and binding upon all Van Boeschoten's and Lorentz's
successors in title in which event the applicant would not, even in relation to portion 203, be entitled to an order that the township clause
conferred no rights on the E respondent (though she would be entitled to certain of the other orders sought).
I turn firstly to a consideration of whether a praedial servitude was F created. If it was, then clearly the appeal must succeed. It was not
contended by either counsel that a personal servitude had been created. On this part of the argument the issue between them was whether
the right to half the net profits accruing from the establishment and sale of erven in a township was a praedial servitude and thus a real right
(in which event, it would be transmissible) or whether it was merely a personal right. In G submitting that it was the former Mr Van Dijkhorst,
for the respondent, made two main points: firstly, that this type of right was capable of being a praedial servitude; secondly, that in the
present matter this is what the parties had intended and indeed achieved. Obviously the second point only arises if the first is decided in the
respondent's favour.
H In Nel NO v Commissioner for Inland Revenue 1960 (1) SA 227 (A) the Court was concerned with a condition which had been registered
against the title deeds of land which obliged the owner to pay to his mother "a monthly sum of £20... and to continue during his mother's
lifetime". It was held that on a proper construction of the clause only a personal obligation on the son had been imposed and not a burden on
the land. At 232 3 RAMSBOTTOM JA said:
"During the hearing, the question was raised whether a burden of this kind, imposing an obligation to pay money, that will bind successors in title, either for a
definite or ascertainable time or in perpetuity, can in South African law be
1978 (3) SA p1049
NESTADT J
imposed upon land and registered against title. VAN WINSEN J. following Commissioner for Inland Revenue v Estate Hobson 1933 CPD 386 and Ex parte Pierce
and Others 1950 (3) SA 628 (O), proceeded on the assumption that such a burden on land could be imposed and registered, and both Mr Duncan and Mr Schock,
who appeared for the respondent, argued on the same assumption. Although the question was raised and argued in Registrar of A Deeds (Transvaal) v Ferreira
Deep Ltd 1930 AD 169, it was not decided, and it has never been decided in this Court. In the view that I take it is not necessary to decide the point in this
appeal. The point is one of importance, it has not been argued before us, and I think that it should be left open for future decision. I therefore express no opinion
upon it."
B The argument raised in the present matter necessitates the question being decided. It will be helpful to refer to certain principles relating to
the creation and nature of servitudes in our law.
(i) A servitude is, of course, a right belonging to one person in the property of another entitling the former either to exercise some
right or benefit in the property or to prohibit the latter C from exercising one or other of his normal rights of ownership (Wille
Principles of South African Law 7th ed at 221). It is an example of a jus in re aliena; it diminishes an owner's dominium in a thing.
(ii) If the right is in favour of a particular individual, without reference to his ownership of land, then one has a personal D servitude. Here
res servit personae. This type of servitude may exist over both movable an immovable property. Normally, it terminates (at the latest) on
the death of the beneficiary (in the case of a natural person). If, however, the right is constituted in favour of the owner of another piece
of land in his capacity as such, then the servitude is a praedial E or real one. It can only exist over land and is not transferable apart from
the land to which it attaches (Webb v Beaver Investments (Pty) Ltd and Another 1954 (1) SA 13 (T) at 25). Here the servitude is
incidental to and passes with the ownership of the dominant land, to which it is inseparably attached, while it burdens the servient land
irrespective of who the owner is (Hahlo and Kahn The Union of South Africa; The F Development of its Laws and Constitutions). In this
case res servit rei
(iii) It is of the essence of a praedial servitude that it burdens the land to which it relates and that it provides some permanent advantage
to the dominant land (as distinct from G serving the personal benefit of the owner thereof, Hahlo and Kahn (supra at 602).
(iv) The usual manner of establishing a (praedial) servitude in by agreement in the form of a notarial deed between the owners of the two
tenements followed by its registration (seeing that it is a jus in re aliena) against the title deeds of the servient land, though for the sake
of clarity it is or can be also H registered against the title deeds of the dominant land (Van Vuren and Others v Registrar of Deeds 1907
TS 289 and 295; Hall and Kellaway Servitudes 3rd ed at 27). The mere fact of registration of a notarial deed does not, however, render
the rights of a servitutal character (Hollins v Registrar of Deeds 1904 TS 603 at 607; Schwedhelm v Hauman 1947 (1) SA 127 (E) at 136;
Van der Merwe v Wiese 1948 (4) SA 8 (C) at 26). It may be that only personal rights were created and that registration should not have
taken place.
1978 (3) SA p1050
NESTADT J
"A jus in personam does not become a jus in rem because it is erroneously placed upon the register"
(per INNES CJ in British South Africa Company v Bulawayo A Municipality 1919 AD 84 at 93). In terms of s 63 (1) of the
Deeds Registries Act 47 of 1937 personal rights as distinct from jura in personam ad rem acquirendam (Registrar of
Deeds (Transvaal) v Ferreira Deep Ltd 1930 AD 169 at 180) are not registrable. On the other hand a Court will not
lightly declare of no value rights which have been registered against title and B which have been looked upon by the
public as valid. Clear proof is required that a title deed is incorrect. VAN BLERK JA said the following in this regard in Hotel
De Aar v Jonordon Investment (Edms) Bpk 1972 (2) SA 400 (A) at 409:
"Geregistreerde aktes word deur die Howe met versigtigheid bejeën en Howe sal nie ligtelik die bestendigheid van titel
wat C dit simboliseer, versteur nie. In Registrar of Deeds (Transvaal) v Ferreira Deep Ltd 1930 Ad 169, sê DE VILLIERS
HR op 181: 'In Hollins v Registrar of Deeds (supra) INNES CJ expressed the opinion that the Court should be very careful
in dealing with the Registry of Deeds. With that view I entirely agree, and it is for that reason the more that it is
satisfactory to be able to arrive at this conclusion. It would be no light matter for the Court to declare of no value rights
which have been registered against title, which have been D looked upon by the public as valid, and upon the faith of
which numerous transactions have been entered into."
(v) The distinction in principle between the creation of real and personal rights was stated in these terms by DE VILLIERS JP in Ex
parte Geldenhuys 1926 OPD 155:
E "If an obligation is a burden upon land, a subtraction from the dominium, the corresponding right is real and
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registerable; if it is not such an obligation, but merely an obligation binding on some person, the corresponding right is a
which have been registered against title, which have been D looked upon by the public as valid, and upon the faith of
which numerous transactions have been entered into."
(v) The distinction in principle between the creation of real and personal rights was stated in these terms by DE VILLIERS JP in Ex
parte Geldenhuys 1926 OPD 155:
E "If an obligation is a burden upon land, a subtraction from the dominium, the corresponding right is real and
registerable; if it is not such an obligation, but merely an obligation binding on some person, the corresponding right is a
personal right, and it cannot, as a rule, be registered."
(I have quoted from the headnote.) It is a matter of interpretation of the deed to determine whether real or F personal
rights were created. The test to be applied and the approach to be adopted has been stated to the following:
"Whether a contractual right amounts in any given case to a servitude whether it is real or only personal depends
upon the intention of the parties to be gathered from the terms of the contract construed in the light of the relevant
circumstances. In case of doubt the presumption will always be against a servitude, the onus is upon the person affirming
the existence of one to prove it."
G (Per INNES CJ in Willoughby's Consolidated Co Ltd v Copthall Stores Ltd 1918 AD 1 at 16. See too the Hotel De Aar
case supra at 406 and Edelor (Pty) Ltd v Champagne Castle Hotel (Pty) Ltd and Another 1972 (3) SA 684 (N) at 689
690.) I would add that H I do not read the passage and authorities quoted as meaning that the parties intention (as
gathered from the terms of the contract) is the sole criterion in deciding the issue. If a contractual right is of such a
nature that it is incapable of constituting a servitude then obviously the intention of the parties (as expressed) to do so
is irrelevant.
(vi) Seeing that the contents of a purely contractual and of a servitutal right may well be and often are identical (Silberberg The Law of
Property at 283 note 2) it may be a matter of some difficulty to decide into which category the right falls. This difficulty is accentuated
by
1978 (3) SA p1051
NESTADT J
the fact that the number of praedial servitudes is now regarded as being practically unlimited (Hahlo and Kahn (supra at
601)). There is no strict numerus clausus of servitutal rights (Van der Merwe v Wiese (supra at 30); Silberberg at 283).
Furthermore, as the author of this book (at 43 4) in his A helpful analysis of the characteristics of limited real rights
subtracting from the ownership of another observes:
"At first sight every personal obligation in terms of which an owner undertakes to deal or not to deal with his property
in a particular manner restricts him in the exercise of his dominium so that the corresponding right which another person
B acquires as a result of such an undertaking would prima facie be a potential real right. However, the law of property
would disintegrate if every personal right relating to a thing could be converted into a real right, while on the other hand,
circumstances might arise which make it desirable that a further type of 'mere' personal right should be added to those
which are capable of being converted into real rights."
C It was submitted on behalf of the respondent that in principle there was no reason why the right of an owner of a property to participate in
the profits from township development on a neighbouring property could not be a praedial servitude. The rights of an owner to grazing or
quarrying or woodcutting or water from adjacent land may constitute praedial servitudes D (or personal ones if granted, not in favour of the
owner of land as such, but in favour of an individual; Hall at 184). Similarly the right to pluck fruit could be a servitude. Therefore, there was no
reason why the right to participate in the (civil) fruits (ie the income) from land could not be a praedial servitude. This was the right which the
clause in question conferred. It was therefore capable of being a servitude. This was E particularly so (the argument continued) because it
would raise the value of the dominant tenement seeing that there was conferred on the owner thereof a claim to half the profits accruing to the
owner of the servient tenement consequent upon the sale thereof or of erven therein after the establishment of a township. As authority for
this being a factor in F determining whether a right is a praedial servitude Hollmann and Another v Estate Latre 1970 (3) SA 638 (A) at 644 was
cited. In this case STEYN CJ stated:
"The proposition that the mere right to trade on another's property, even if granted to successive owners of another property, cannot qualify as a praedial
servitude, is not by any means unassailable. There is authority, cited by counsel for the respondent, pointing the other way. Brunneman Com G ad Dig 8.1.19,
Voet 8.4.15 in fine, for instance, appear to be of the view that a servitude would qualify as a praedial servitude if it would raise the price of the dominant
tenement, while in Willoughby's Consolidated Co Ltd v Copthall Stores Ltd 1988 AD 1, at 16, it was apparently accepted that a servitude to trade upon a particular
property could be constituted in favour of another property."
The clause was akin to both the exclusive right of trading given to the H owner of land over adjacent property (which restriction, if registered,
could be a praedial servitude: Hollmann's case supra: Hotel De Aar case supra) as also to a prohibition of trading on the servient tenement
(which similarly could be a praedial servitude; Venter v Minister of Railways 1949 (2) SA 178 (E)).
I cannot agree with this argument. In saying this I will assume in respondent's favour that the obligation to pay over onehalf of the profits is
not to be regarded as one in faciendo and that even if it is, it could still be a
1978 (3) SA p1052
NESTADT J
praedial servitude (Van der Merwe v Wiese (supra)). Also one must accept that if the right to participate in the township profits attaches to
the land it would enhance the value thereof. I do not think, however, that it A follows from the passage referred to in Hollman's case that
merely because of this, the right in question is real (though it is obviously a factor to be taken into account in determining the nature of the
right). Similarly, as I have attempted to indicate, the mere fact that the profits clause amounts to a subtraction from dominium (as I think it
does) does not make B it, even on registration, a real servitude. I find it unnecessary to express an opinion as to whether the submission that
the right to pluck fruits can constitute a servitude is correct. Of course, it forms part of the usufructuary's rights. But in relation to praedial
servitudes it is by no means clear that this right can confer servitutal rights. Hahlo and Kahn state (at 602):
C "The old example of the Roman law, which was duly repeated in the Romanistic literature, was that one cannot have a praedial servitude to pluck fruit or to
stroll or to have dinner on another's land. On the other hand, the use made of the servient land must be based on some permanent attribute or feature of it. This
is expressed in the requirement of the existence of a causa perpetua."
The right (and obligation) under consideration, so it appears to me, is D essentially a personal one sounding in money and cannot be equated to
the servitudes referred to. Test the matter, says Mr KirkCohen on behalf of the applicant, by postulating the insolvency of Van Boeschoten or
Lorentz after the establishment of a township and the sale and transfer of erven therein and the receipt of the proceeds by one of them. What
claim other E than a personal one would the other owner have had? I think counsel is right in saying that the answer "none" is indicative of no
real right having been established and this for the reason that the conditional obligation to pay attaches of necessity not to the land (which is
not burdened) but merely to the owner thereof. His rights are curtailed but not in relation to the enjoyment of the land in the physical sense.
F There are authorities illustrative of this approach. Voet 8.3.12 (Commentary on the Pandects; Gane's trans vol 2) states:
"For that reason when Seius had bequeathed landed properties in different cantons to Maevia and to Seia, and had provided as follows 'I wish 1 300 pounds of
reed and 1 000 pounds of fine osiers to be furnished every year from the Potitian properties to the Lutatian properties', the opinion was given that a servitude did
not appear to have been lawfully established G either in personam or in rem. Not in personam, since the furnishing is made not to a person but to a landed
property; and not in rem, because it would be wiped out with the death of the legatee. It is thus to be considered rather a yearly legacy."
In Executors Estate Napier v Trustee, Estate Weir 1927 SR 33 the facts were that lots in a township were sold subject to the following term:
H "That the proprietor of the said lot shall pay... to the appearer's principal on 1 July each and every year the sum of £...., provided that such annual payment
may at any time be redeemed by the payment of a sum equivalent to ten of such annual payments".
The land comprising the township was jointly owned by a William Napier and Ada Weir. They then were the beneficiaries of the monies to be
received by them jointly. When Napier died it was contended by Weir that she was henceforth entitled to receive the whole of the annual
payments. The basis of this contention was that what had been created was a personal servitude which on the death of the beneficiary
ceased, so that
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1978 (3) SA p1053
The land comprising the township was jointly owned by a William Napier and Ada Weir. They then were the beneficiaries of the monies to be
received by them jointly. When Napier died it was contended by Weir that she was henceforth entitled to receive the whole of the annual
payments. The basis of this contention was that what had been created was a personal servitude which on the death of the beneficiary
ceased, so that
1978 (3) SA p1053
NESTADT J
thereafter the surviving beneficiary was entitled to the entire proceds. It was held, however, that a personal servitude had not been created
but only a personal right in favour of the beneficiaries which on their deaths were transmissible to their heirs. Accordingly, Weir was not entitled
to A all the annual payments; the estate of Napier had a right to half. During the course of the judgment the following was stated (at 44):
"The special condition in this case imposes on the proprietor merely the obligation to pay a sum of money annually. The proprietor suffers no diminution of or
subtraction from any one of the rights which in the aggregate make up his right of ownership (dominium), viz the rights of enjoyment, possession, alteration and
alienation. He has not to suffer B anything, or abstain from doing anything which, ordinarily, as owner he would not suffer or would have to forbear from doing.
Nor does the annual payment necessarily come out of the fruits, if any, of the property. Accordingly, this special condition appears to be lacking in essential
features of a servitude."
Then, after referring to the essential features of a servitude, namely C that it is the detachment of some of the rights of ownership from the
ownership of particular property, the judgment continues (at 45):
"In this sense the 'Hillside lots' do not serve the beneficiaries under the special condition in question. The owner of a lot has merely to make an annual
payment in fulfilment of a contractual obligation. He has not to suffer or abstain from doing something. The obligation to make this D payment was part of the
consideration given by the purchaser for the land. If not imposed, the 'purchase money' for the lot would no doubt have been substantially higher. In my view the
special condition was not intended to create a personal servitude terminating with the deaths of the beneficiaries. It is lacking in essential features of a servitude.
I think that no more than an ordinary contractual obligation was meant to be, or was created, and that the rights of the beneficiaries under such an obligation are
freely assignable and passed to their heirs".
E In Van Vuren v Registrar of Deeds (supra) it was held on the authority of Hollins v Registrar of Deeds (supra) that an undertaking by the
owners of land to divide the proceeds of mineral rights in such land in certain proportions cannot be registered against the title deeds of the
property. In Hollins' case the Court was concerned with a contract by which an owner F undertook, in the event of his farm being proclaimed in
the future and a mynpacht being granted to him under the Gold Law, to transfer half of the mynpacht together with the freehold of the ground
on in personam upon the grantee. INNES CJ (at 606) said:
G "The Court should be very careful in dealing with the Registry of Deeds. It has grown up upon a basis well understood by the people, and especially by those
who have to deal with it; even though we may think that it would be desirable to extend the use of the Registry of Deeds in certain respects in view of the
changed conditions of modern times, I think that any such extension would be best effected by the Legislature, after full enquiry and with due safeguards:"
In a concurring judgment Wessels J (at 608) added:
H "... I cannot understand how either by the common law or by Proclamation one can have registration of a right, the birth of which is dependent upon a
contingency."
The Proclamation referred to was the predecessor in the Transvaal to the Deeds Registries Act. In Ex parte Geldenhuys (supra) a mutual will
provided that
"as soon as our first child reaches his or her majority, the survivor of the testators shall be bound to divide the said land in equal portions and distribute it
among the children, such distribution to be made by the survivor and such major child by drawing lots, and we declare and direct that the child who by such lot
obtains
1978 (3) SA p1054
NESTADT J
the portion comprising the homestead of the farm 'Jakhalskop' shall pay the sum of £200 to our children"
within a specified time. It was held that the direction in regard to the A payment of £200 was a jus in personam and not per se registrable but,
that seeing that it was intimately connected with the rest of the clause which was registrable (because it formed a real encumbrance or
burden), the entire clause should be registered.
In support of the argument for the respondent, the case of Registrar of B Deeds (Transvaal) v Ferreira Deep Ltd (Supra) was quoted. In that
matter it was held that a deed of transfer in respect of land situated in the Transvaal containing a condition inter alia reserving to a certain
company
"all rights which may accrue to the freehold owner in respect of one half share of the claim or stand licences"
is a document affecting immovable property and is capable of registration. C The decision rested on a finding not that the right to a share of
the licences was capable of becoming a real right on registration, but on the fact that registration of this type of deed had been sanctioned by
usage and practice in the Transvaal. It had actually been admitted in the Court below that the rights were personal. I therefore do not think,
there being D no evidence of a practice or usage in the present matter, that this case assists the respondent. I must, however, before leaving
it, refer to the passage which VAN BLERK JA in the Hotel De Aar case quoted and which I have already cited. This consideration, namely that
the Courts will not lightly declare of no value the rights which have been registered against title, was urged upon us. It was stressed that not
only the original E parties themselves had caused the notarial deeds of 1905 and 1922 to be registered, but that, for more than 50 years,
successors in title to the various subdivisions had apparently so acted as if the township clause was a praedial servitude. In the light of what
the learned CHIEF JUSTICE said in the Ferreira Deep case, this must obviously be a weighty factor. I am of the view, however, that the sanctity
of the register must in the F present matter yield to the need for deleting what I regard as the incorrect registration of a contingent personal
right.
Before leaving this issue there are two other authorities which appear to support the respondent's argument and to which I must refer. They are
Ex parte Pierce and Others 1950 (3) SA 628 (O) and Odendaalsrus Gold General G Investments and Extensions Ltd v Registrar of Deeds 1953
(1) SA 600 (O). In the former it was decided that an obligation imposed on the owner of land to pay over the profits from minerals found on his
land was a diminution of his ownership and created a real right in favour of the beneficiary thereof. At 635 6 BRINK J expressed himself as
follows:
H "I hold the view that an obligation to pay money imposed on the owner of land qua owner out of the proceeds of the land may well be regarded as a
diminution of the ownership and as creating real rights. Voet 1.8.22, 23, 24 mentions a number of examples of obligations to pay money imposed on the owner
of the land which are regarded as iura in re... In the present case the profits to be divided among the persons mentioned arise from the realisation of part of the
land (the mineral rights) and the obligation to divide is imposed on whoever happens to be the owner of the land when the minerals are found. The testator, in
my opinion, intended to impose a burden on the land. The fact that the owner is obliged to divide the proceeds of the mineral rights in a particular manner,
amounts to a subtraction from the dominium of the land."
1978 (3) SA p1055
NESTADT J
Similarly in the latter case, it was held that the right to claim an owner's share of licence moneys payable under s 42 of the Precious and Base
Metals Act 35 of 1908 of the Transvaal (which applied also to the A Orange Free State by virtue of Act 13 of 1936) constituted a real right. At
610 SMIT J said:
"That such a right is one attaching to the land itself seems to be borne out by Voet 1.8.23 where he mentions rights which are accustomed to be ranked as
immovables,
'as for instance, the right of charge for passage through on foot, over a bridge, through a gate, the right of tithe... rights of hunting, B fishing, salt pits, rents of
metal mines and the like.' (Buchanan's translation.)
The right to a share in claim licence moneys does not seem to me to be unlike these rights".
Then, after likening the right to claim licence moneys in respect of minerals to the (civil) fruits arising out of land and after observing that a
usufructuary has the right to take the fruits of the property, the C learned Judge concludes (at 611):
"In my judgment then a right to the owner's share of claim licence moneys payable in respect of land belonging to another person is a diminution of the latter's
rights of ownership in the land and constituted a right in the land itself."
I have already referred to the difficulty in relying on the argument based on the analogy of civil fruits. With regard to these two decisions D
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generally, it seems to me, that, dealing as they were with mineral rights (and in the Odendaalsrus Gold Co case certain legislation appertaining
thereto), they cannot be regarded as of general application (see Silberberg's comments on the case at 45 of his textbook). In particular, I do
usufructuary has the right to take the fruits of the property, the C learned Judge concludes (at 611):
"In my judgment then a right to the owner's share of claim licence moneys payable in respect of land belonging to another person is a diminution of the latter's
rights of ownership in the land and constituted a right in the land itself."
I have already referred to the difficulty in relying on the argument based on the analogy of civil fruits. With regard to these two decisions D
generally, it seems to me, that, dealing as they were with mineral rights (and in the Odendaalsrus Gold Co case certain legislation appertaining
thereto), they cannot be regarded as of general application (see Silberberg's comments on the case at 45 of his textbook). In particular, I do
not regard them as deciding that a monetary obligation imposed on an E owner of land of the type we are dealing with necessarily constitutes
an encumbrance against such land.
In the result I am of the opinion that that part of the notarial deed under consideration, namely the township clause, confers only personal
rights, which, even on (their incorrect) registration, were not capable of becoming and did not become a praedial servitude. Because of the
basis of F this conclusion, which is arrived at irrespective of what the intention of the parties as expressed in the deed was, it is unnecessary
to consider the various submissions which were respectively made on behalf of both parties and which were founded on what was contended to
be the proper construction thereof and in particular of the township clause. I repeat G what was said above, namely that, if a contractual right
is of such a nature that it is incapable of constituting a servitude, then the intention of the parties (as expressed) to do so, cannot avail.
This brings me to a consideration of respondent's alternative argument that in any event, even if only personal rights and obligations were
created, these are transmissible to the successors in title of Van H Boeschoten and Lorentz without restriction or qualification. As I have said,
applicant's case is that this is not so. The submission on her behalf was in effect that the rights conferred by the township clause were
transmissible only to transferees from the original contracting parties. The dispute thus raised turns on the meaning of the expression "heirs,
executors, administrators or assigns" and particularly of "assigns". Mr KirkCohen, stressing the use of the words "his" and "their" immediately
prior to this phrase, contended that this category of successorintitle was confined
1978 (3) SA p1056
NESTADT J
to the heirs, executors, administrators and assigns of Van Boeschoten and Lorentz. Similarly, it was said "assigns" as used in the deeds were
grantees of rights acquired only from the original contracting parties A thereto; they did not include successive assignees. Van Boeschoten and
Lorentz, being friends, had reserved to themselves the right to transfer by will or inter vivos such rights of as to confer upon an heir or an
assign (and also, where necessary, on an executor or administrator) the rights they would have enjoyed during their lifetime; this they did B
because of their mutual trust in permitting a delectus personae by will or inter vivos to take their places: but beyond this there was to be no
transmission of the rights in question. The use of the words "in perpetuity" in the mineral rights clause which provides:
"One half of the precious and base metals and minerals and precious stones (if any) in, on or upon Henricus Lorentz's portion shall be and remain the C
property of Johannes Gerard van Boeschoten his heirs, executors, administrators or assigns in perpetuity"
was pointed to. The submission was that these words gave "heirs, executors, administrators or assigns" an extended meaning in this clause and
that the failure to use "in perpetuity" in relation to the rights conferred by the township clause was a clear indication that the heirs, executors,
administrators and assigns to whom these rights could be D transferred were limited. Counsel for the respondent on the other hand, in support
of his contention that transferability is not limited to the first transferee of the right from the appearers, relied on clause 11 of the deed which
he said showed that not only Van Boeschoten and Lorentz could sell to third parties but also the heirs. Whereas, in the case of this E clause,
the rights would terminate if this happened the same did not apply where, in relation to the township clause, the heirs sold. Mr Van Dijkhorst
also drew attention to certain anomalies which would arise if effect were given to the applicant's construction of "heirs, executors,
administrators or assigns". He posed the following question: Why should F transmissibility be limited to the first transferee only; if the rights
which were regarded as valuable are transferable to the executor, why preclude him from selling them for the benefit of the estate; why should
an heir acquire the right to township profits but not in his turn his own heirs; was it not inconceivable that the appearers could have included G
their children but excluded further offspring like grandchildren while granting the right to transfer to third parties (assigns); in any event, the
heirs of the contracting parties could extend to generations. Both sides referred to a number of authorities in English law and in our law dealing
with both the proprietary or testamentary and contractual meanings H of "assign" and "assignment". Its meaning in English law was stated to be
of particular importance because of the probability that the use of the phrase in question in the 1905 deed originated and was taken from
English conveyancing practice. The submission on behalf of the respondent was that in English law the words in question meant successorsin
title. Mr KirkCohen disputed that this was so; in any even, there was no evidence that conveyancing in the Transvaal (even in 1905) was
influenced by English law. As regards our law, amongst the authorities we were referred to was the De Aar case supra in which the phrase
"heirs, executors and assigns" was equated with "eksekuteurs, erfgename en opvolgers in titel".
1978 (3) SA p1057
NESTADT J
It is clear that Van Boeschoten and Lorentz each wished the township clause (amongst others) to be operative after his death. This they
purported to do in two ways. As regards the transfer of rights, there is the declaration that Van Boeschoten "his heirs, executors or assigns" A
shall have certain rights over Lorentz' portion. Similarly (though in slightly wider terms) Lorentz, "his heirs, executors, order, administrators or
assigns" are given rights over Boeschoten's portion (clause 9). The transfer of obligations is dealt with by the provision in the last paragraph
that
B "wherever mention is made of Henricus Lorentz or Johannes Gerard van Boeschoten, these names shall include their heirs, order or assigns."
The issue is the extent to which successorsintitle to the original contracting parties have acquired such rights and become subject to such
obligations. It seems to me that a distinction has to be drawn between the C two, ie between the transmissibility of the right to township
profits and the transmissibility of the obligation to pay them.
I commence a consideration of the former with a reference to the following passage from the judgment of GREENBERG JA in Friedlander v De Aar
Municipality 1944 AD 79 at 93:
"Prima facie, all contractual rights can be transmitted unless their D nature involves a delectus personae or the contract itself shows that they were not
intended to be ceded (Sande Cession of Actions ch 5 s 1; Eastern Rand Exploration Co v Nel 1903 TS 42 at 53, 64; Blumberg v Buys and Others 1908 TS 1175).
In addition, the clause by its use of the words 'their heirs, executors or assigns' makes the conclusion even more certain..."
(See too Wessels Law of Contract in South Africa 2nd ed vol 1 para 1694.) Such transmission also of course occurs on death; where a
deceased person E was a party to a contract, his executor is, as a rule, entitled to sue upon it if the deceased could have sued had he been
alive (Wessels para 1662). It follows from this there being no question of a delectus personae being involved that, even without the express
reference to the heirs and assigns of the parties, the rights conferred by the township F clause could have been freely and without limitation
transferred whether inter vivos by cession, or on death. In other words, their use was really unnecessary. Support for this approach is to be
found in the fact that in English law and I think there is a lot to be said for the view that the phrase in question did have its origin in English
conveyancing practice G (Rolfes, Nebel and Co v Zweigenhaft 1903 TS 185 at 189 190) the words "heirs and assigns" had no effect other
than to be" declaratory of the power of alienation which would exist without them and had no conveyancing value". (Halsbury Laws of England
3rd ed vol 32 para 366 note (d); Milman v Lane (1901) 2 KB 745 (CA) at 750.) Indeed, there is acceptance in our law that this is so of English
law (Estate Welsford v Estate Wright 1930 H OPD 162 at 167). I therefore have difficulty in understanding what justification there is for
restricting such transferability in the manner contended for by the applicant. It is, however, unnecessary to express a firm view on this point or
to deal with the problem of whether transfer of the rights could be effected merely by the deed of transfer or whether a special cession would
be necessary (as to which see Rocher v Registrar of Deeds 1911 TPD 311 at 316).
Even assuming, as I do, that the right to township profits was and is
1978 (3) SA p1058
NESTADT J
freely transferable to and by Van Boeschoten's and Lorentz' successors in title the questions remain; to what extent (if any) are those rights
enforceable against persons other than the contracting parties; are they A bound by their predecessors' (Van Boeschoten or Lorentz)
obligations under the township clause and, if so, on what juristic basis. If they are not, then the transmissibility of rights would (save for their
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enforcement against Van Boeschoten or Lorentz, a situation which does not arise in the present matter) be an empty consequence or
achievement. Obviously, a right without a corresponding duty amounts to no right at all.
NESTADT J
freely transferable to and by Van Boeschoten's and Lorentz' successors in title the questions remain; to what extent (if any) are those rights
enforceable against persons other than the contracting parties; are they A bound by their predecessors' (Van Boeschoten or Lorentz)
obligations under the township clause and, if so, on what juristic basis. If they are not, then the transmissibility of rights would (save for their
enforcement against Van Boeschoten or Lorentz, a situation which does not arise in the present matter) be an empty consequence or
achievement. Obviously, a right without a corresponding duty amounts to no right at all.
B I see the position as follows. The general rule is that a contract cannot bind a person who is not a party to it. (Wessels vol 1 para 1655.)
Contractual duties, however, can be or are transmitted in the following ways (which are thus exceptions or quasi exceptions to the rule): (i)
where the duty constitutes a real encumbrance on land, by the acquisition C of such land; (ii) by operation of law on the death of a
contracting party, to his executor and administrator (Wessels vol 1 paras 1655; 1658; 1679). This does not automatically include an heir. The
Romanistic principle of universal succession no longer applies (Hahlo and Kahn at 623); (iii) by agreement between the original contracting
parties and the D person to be substituted as debtor. This is called delegation which is a form of novation. It is essential that the third person
consent for invito aliquo, quod factum est, si non comprobarit non praejudicat (Wessels vol 1 para 1690).
It follows from this that a personal obligation even if registered does not become binding upon a transferee of the land from the debtor unless
such transferee takes the obligation over. This is illustrated by the E following authorities. In Union Government (Minister of Railways and
Harbours) v Rumsey's Executors 1913 AD 192 the plaintiffs (the respondents on appeal) claimed a declaration of rights in respect of an
agreement for the supply of water to the government railways at a certain station on the F GraaffReinet line, contending that the agreement
was perpetual on both sides and that the Government had wrongly cancelled it. The agreement in question was described as a deed of
servitude. The defendant claimed the right to cancel the contract at any time. The agreement purported to bind the plaintiff and its assigns in
perpetuity. The contention of the plaintiffs was that the document imposed mutual obligations; that they and their assigns were bound in
perpetuity, and that the corresponding G undertaking of the Government (to take the water and pay for it), being expressed to endure during
the continuance of the agreement, imported an obligation which must also be perpetual. Regarding the second portion of the plaintiff's
contention INNES J said (at 203):
H "Have the executors any power by a contract of this nature to bind themselves and their assigns in perpetuity? No individual can take the discharge in
perpetuity of a personal obligation. And a fortiori no executor, subject as he is to a statutory duty to wind up the estate within a definite time, can do so."
Schwedhelm v Hauman (supra) was a case in which the plaintiff, according to his declaration, had sold and transferred a portion of his land to E
who thereafter transferred it to the defendant. One of the conditions of sale which was registered against the title deed of the portion
purchased by E was that the transferor and his successorsintitle have the right to draw water from a dam on the property sold against
payment of £1 0s 0d
1978 (3) SA p1059
NESTADT J
per month and that
"any windmill, pipes, etc, which are necessary for the exercise of such right, shall be provided and suitably maintained by the transferee or his successorsin
title who shall in no way hinder the transferor or his A successorsintitle in the enjoyment of this right".
Plaintiff had called upon defendant to fulfil the obligations under the condition and defendant had refused to do so. Plaintiff now claimed specific
performance and damages. Defendant excepted to the declaration as disclosing no cause of action on the ground that it purported to claim
that, merely by reason of defendant's being a successorintitle to E, he B was bound by the condition in question; the condition, insofar as it
gave plaintiff and his successorsintitle the right to draw water from the defendant's dam, was admitted to be enforceable against the
defendant, but the portion of the condition which purported to create an obligation to provide and maintain a windmill, pipes, etc was an
attempt to create a C praedial servitude unknown in law and void. It was held that, despite the fact or registration, the rights and obligations in
the condition, save the right of drawing water from the dam, were not of a servitutal character; that the portion of the condition objected to
was not void as being contrary to public policy and had been binding as a condition of sale between plaintiff and E; that it was competent for
E's obligations to D be assumed by or transferred to defendant if he expressly agreed thereto and that the fact that defendant had notice of
the rights and obligations in question before or at the time of the purchase would not per se cast upon him any duty to recognise them, or
render his conduct fraudulent in refusing to recognise them. On the facts, however, it was found that the E declaration sufficiently alleged that
the defendant had expressly undertaken the performance of the personal obligation contained in the condition. It is clear therefore and as
LEWIS J (PITMAN JP concurring) says at 139 141:
"... when a property is sold, subject generally to all such rights and conditions as then attached to it, the purchaser is bound only in respect of real burdens in
the nature of servitudes attached to it, not in respect of personal obligations of the seller... (T)he mere fact of becoming F owner of the property would not per se
subject the defendant to the burden of these purely personal obligations."
(See too Consistory of Steytlerville v Bosman 10 SC 67.)
What is the position here? I have already rejected the contention that the registration of the deeds resulted in the township clause becoming a
real G encumbrance against the land. The applicant is neither Van Boeschoten's executor nor administrator. For the reasons given she cannot be
bound simply because she is his heir. I did not understand it to be alleged by or contended on behalf of the respondent that the applicant is
bound by the township clause because of a subsequent and independent undertaking or assumption of the obligations contained therein. What
the submission made H on his behalf amounts to is that the applicant, as owner, and her successorsintitle are, because of the stipulation in
the deeds that wherever mention is made of Lorentz or Van Boeschoten these name shall include their heirs, executors, administrators or
assigns, per se bound. In my opinion an application of the principles referred to must result in this submission being rejected. In the result the
respondent's alternative argument fails.
On the papers the issue does not arise as to what the rights (as opposed
1978 (3) SA p1060
NESTADT J
to the duties) of the applicant against the various respondents under the township clause are. There is no question of applicant contending
that she is or will be entitled to enforce the township clause against them. It is A therefore unnecessary to consider whether on a true
construction of the deeds such rights and duties are reciprocal to that for this reason alone (ie her not being prepared to assume an obligation
to pay over half the township profits) she would be precluded from being entitled to claim from the respondents under the township clause. It
need hardly be added that B she would, in any event, have to prove an independent undertaking by such respondent or respondents to be
bound by the clause.
To return to the relief claimed in the notice of motion. By reason of our finding that the township clause did not confer real rights, the applicant
is entitled to the order sought in para 1 thereof (though who the heirs, C executors, administrators and assigns are is not thereby defined).
Paras 2 and 4 of the notice of motion (and order), concerning as they do respondents other than the tenth respondent, are not subject to any
appeal and therefore stand. In the light of the conclusion that applicant's property was not burdended that she personally is not bound, she is
entitled to an order in terms of para 3 of the notice of motion. Indeed, D in the view we take of the matter, the applicant has unnecessarily
restricted the terms of the relief claimed so that it operates only against respondent as owner of one of his three subdivisions, namely portion
203. The same considerations apply to para 4 of the notice of motion. Para 6 gives rise to some difficulty. Not having decided what the exact
meaning of the phrase "heirs, executors, administrators or assigns" E is, I do not think that his part of the order can or should have been
granted. In any event, in view of the other parts of the order, it is superfluous.
It remains to briefly deal with the order for costs that was made by the Court a quo. The respondent complained that it should have been in the
narrower form that he pay the costs occasioned by his opposition. I am not F sure that this is not what the order means. The applicant some
three weeks before the hearing of the appeal wrote to the respondent and said that this is how the order was interpreted. It was also stated
that, insofar as the order may be construed more widely, she abandoned that part of the order for costs as exceeded her interpretation. To put
the matter beyond G doubt, we propose to alter the order for costs so that it accords with such interpretation. There is no warrant, because of
the amendments which will be made to the order of the Court a quo, for depriving the applicant of her costs of appeal.
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(1) The order of the Court a quo is altered as follows:
three weeks before the hearing of the appeal wrote to the respondent and said that this is how the order was interpreted. It was also stated
that, insofar as the order may be construed more widely, she abandoned that part of the order for costs as exceeded her interpretation. To put
the matter beyond G doubt, we propose to alter the order for costs so that it accords with such interpretation. There is no warrant, because of
the amendments which will be made to the order of the Court a quo, for depriving the applicant of her costs of appeal.
I propose that the following order be made:
(1) The order of the Court a quo is altered as follows:
(a) Para 6 thereof is deleted.
H (b) Para 8 thereof is amended to read:
"The applicant is to pay the costs of the application save those costs occasioned by the tenth respondent's opposition which costs
such respondent is to pay."
(2) Save to this extent the appeal is dismissed.
(3) The tenth respondent in the Court below (now the appellant) is to pay the costs of the appeal, such costs to include the fees consequent upon the
employment of two advocates.
1978 (3) SA p1061
NESTADT J
VILJOEN J and HUMAN J concurred.
Appellant's Attorneys: Rooth and Wessels. Respondents' Attorneys: StegmansGlen.
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