Eden Crescent Share Block Ltd v Olive Marketing CC and Others (1075/2020) [2022] ZASCA 177; 2023 (3) SA 476 (SCA) (9 December 2022)

Eden Crescent Share Block Ltd v Olive Marketing CC and Others (1075/2020) [2022] ZASCA 177; 2023 (3) SA 476 (SCA) (9 December 2022)

The Supreme Court of Appeal held that the servitude registered over Eden's property in favour of Olive's property is a general servitude, not a specific one. The servitude requires Eden to provide at least 250 parking spaces but does not specify their location, thereby granting Olive the right to select the spaces subject to acting civiliter modo. The absence of a survey diagram and the lack of specification regarding the location do not render the servitude invalid. The court further found that the registration of the servitude did not constitute an alienation of property requiring approval under the Share Blocks Control Act or consent under the Housing Development Schemes for Retired...

Citation
[2022] ZASCA 177
Parties
Applicant: Eden Crescent Share Block Ltd; Respondent: Olive Marketing CC; Respondent: Ethekwini Municipality; Respondent: Shepstone & Wylie
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
9 December 2022
Case Number
1075/2020
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Supreme Court of Appeal Following Refusal by the High Court; Oral Argument Heard and Judgment Delivered.
Outcome
All applications for leave to appeal are dismissed with costs, including costs of two counsel where employed.
Judges
Dambuza ADP, Molemela JA, Plasket JA, Basson AJJA, Siwendu AJJA
Legal Topics
Servitude Validity, Vagueness in Servitude, Share Blocks Control Act, Housing Development Schemes for Retired Persons Act, Alienation of Property, Registration of Servitude
Land and Property Civil Procedure Servitude Validity Vagueness in Servitude Share Blocks Control Act Housing Development Schemes for Retired Persons Act Alienation of Property Registration of Servitude

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Parties

Eden Crescent Share Block Ltd

Applicant

Olive Marketing CC

Respondent

Ethekwini Municipality

Respondent

Shepstone & Wylie

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Supreme Court of Appeal Following Refusal by the High Court; Oral Argument Heard and Judgment Delivered.

Legal Issues

  1. 1 Whether the parking servitude registered over Eden's property in favour of Olive's property is invalid due to vagueness regarding the number and location of parking spaces.
  2. 2 Whether the servitude constitutes a specific or general servitude.
  3. 3 Whether the servitude is invalid for lack of compliance with special procedures under s 8(1)(c) of the Share Blocks Control Act 59 of 1980 and s 4B of the Housing Development Schemes for Retired Persons Act 65 of 1988.

Ratio Decidendi

The Supreme Court of Appeal held that the servitude registered over Eden's property in favour of Olive's property is a general servitude, not a specific one. The servitude requires Eden to provide at least 250 parking spaces but does not specify their location, thereby granting Olive the right to select the spaces subject to acting civiliter modo. The absence of a survey diagram and the lack of specification regarding the location do not render the servitude invalid. The court further found that the registration of the servitude did not constitute an alienation of property requiring approval under the Share Blocks Control Act or consent under the Housing Development Schemes for Retired...

Court Disposition

All applications for leave to appeal are dismissed with costs, including costs of two counsel where employed.

Orders

  • Eden Crescent Share Block Ltd’s application for leave to appeal is dismissed.
  • Eden is directed to pay the costs of Olive Marketing CC, including the costs of two counsel where employed.