Bedford Square Properties (Pty) Ltd v Erf 179 Bedfordview (Pty) Ltd (2011 (5) SA 306 (SCA)) [2011] ZASCA 37; 291/10 (28 March 2011)

Bedford Square Properties (Pty) Ltd v Erf 179 Bedfordview (Pty) Ltd (2011 (5) SA 306 (SCA)) [2011] ZASCA 37; 291/10 (28 March 2011)

The Supreme Court of Appeal held that the servitutal restraint of trade registered over the appellant's properties was initially valid, having been agreed to by parties with equal bargaining power, limited in scope, duration, and application. The principles applicable to contractual restraints of trade do not automatically apply to servitudes, as servitudes restrict property use rather than personal activity. For a servitude to become invalid due to public policy, the party alleging invalidity must prove that circumstances have changed to render the servitude contra bonos mores. The appellant failed to provide any evidence of changed circumstances; thus, the servitude remains valid and...

Citation
[2011] ZASCA 37
Parties
Appellant: Bedford Square Properties (Pty) Ltd; Respondent: Erf 179 Bedfordview (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 March 2011
Case Number
291/10
Procedural Posture
Civil Appeal / Appeal From South Gauteng High Court
Outcome
Appeal dismissed with costs, including the costs of two counsel.
Judges
Harms, Heher, Ponnan, Malan, Tshiqi
Legal Topics
Servitude, Restraint of Trade, Public Policy, Real Rights, Declaratory Relief
Land and Property Commercial and Corporate Servitude Restraint of Trade Public Policy Real Rights Declaratory Relief

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 12 Party arguments 2
Sign in to unlock

Parties

Bedford Square Properties (Pty) Ltd

Appellant

Erf 179 Bedfordview (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From South Gauteng High Court

Legal Issues

  1. 1 Whether a servitutal restraint of trade registered over property may become invalid due to public policy considerations.
  2. 2 Whether the principles applicable to contractual restraints of trade apply to servitudes.
  3. 3 Whether the appellant proved changed circumstances rendering the servitude contra bonos mores.

Ratio Decidendi

The Supreme Court of Appeal held that the servitutal restraint of trade registered over the appellant's properties was initially valid, having been agreed to by parties with equal bargaining power, limited in scope, duration, and application. The principles applicable to contractual restraints of trade do not automatically apply to servitudes, as servitudes restrict property use rather than personal activity. For a servitude to become invalid due to public policy, the party alleging invalidity must prove that circumstances have changed to render the servitude contra bonos mores. The appellant failed to provide any evidence of changed circumstances; thus, the servitude remains valid and...

Court Disposition

Appeal dismissed with costs, including the costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.