Berzack v Huntrex 277 (Pty) Ltd and Others (210/2021) [2023] ZASCA 17; [2023] 2 All SA 1 (SCA); 2023 (6) SA 120 (SCA) (21 February 2023)

Berzack v Huntrex 277 (Pty) Ltd and Others (210/2021) [2023] ZASCA 17; [2023] 2 All SA 1 (SCA); 2023 (6) SA 120 (SCA) (21 February 2023)

The Supreme Court of Appeal was divided. The majority (Plasket JA and Goosen AJA) held that the servitude registered in favour of the applicant was a personal servitude of usus, not a praedial servitude. The servitude served only the applicant's personal pleasure and did not confer a permanent advantage to the dominant tenement as required for praedial servitudes. The majority found that the utilitas requirement was not met, and the rights created were personal in nature. Section 66 of the Deeds Registries Act prohibits registration of personal servitudes extending beyond the lifetime of the beneficiary, rendering the servitude unenforceable beyond the applicant's lifetime. The minority...

Citation
[2023] ZASCA 17
Parties
Applicant: Margot Berzack; Respondent: Huntrex 277 (Pty) Ltd; Respondent: Registrar of Deeds; Respondent: City of Cape Town Municipality
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
21 February 2023
Case Number
210/2021
Procedural Posture
Leave to Appeal / Appeal From Western Cape Division of the High Court, Cape Town
Outcome
Leave to appeal was granted in respect of the fencing issue and costs, and the appeal was upheld to that extent. The remainder of the application for leave to appeal was dismissed with costs.
Judges
Petse, Molemela, Plasket, Nhlangulela, Goosen
Legal Topics
Servitude Registration, Praedial Vs Personal Servitude, Deeds Registries Act, Rectification of Title Deed, Acquisitive Prescription
Land and Property Civil Procedure Servitude Registration Praedial Vs Personal Servitude Deeds Registries Act Rectification of Title Deed Acquisitive Prescription

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Parties

Margot Berzack

Applicant

Huntrex 277 (Pty) Ltd

Respondent

Registrar of Deeds

Respondent

City of Cape Town Municipality

Respondent

Procedural Posture

Leave to Appeal / Appeal From Western Cape Division of the High Court, Cape Town

Legal Issues

  1. 1 Whether the garden servitude registered against the servient tenement is a praedial or personal servitude of usus.
  2. 2 Whether such servitude is capable of registration in terms of section 66 of the Deeds Registries Act 47 of 1937.
  3. 3 Whether rectification or prescription could confer praedial rights on the applicant.

Ratio Decidendi

The Supreme Court of Appeal was divided. The majority (Plasket JA and Goosen AJA) held that the servitude registered in favour of the applicant was a personal servitude of usus, not a praedial servitude. The servitude served only the applicant's personal pleasure and did not confer a permanent advantage to the dominant tenement as required for praedial servitudes. The majority found that the utilitas requirement was not met, and the rights created were personal in nature. Section 66 of the Deeds Registries Act prohibits registration of personal servitudes extending beyond the lifetime of the beneficiary, rendering the servitude unenforceable beyond the applicant's lifetime. The minority...

Court Disposition

Leave to appeal was granted in respect of the fencing issue and costs, and the appeal was upheld to that extent. The remainder of the application for leave to appeal was dismissed with costs.

Orders

  • Leave to appeal is granted in respect of paragraphs 1, 2, 3, 4, 8 and 10 of the high court’s order.
  • The appeal against paragraphs 1, 2, 3 and 4 of the high court’s order is upheld with costs, including the costs of two counsel.