Olive Marketing CC v Eden Crescent Share Block Limited and Another (2629/2017) [2020] ZAKZDHC 46; [2020] 4 All SA 498 (KZD); 2021 (2) SA 170 (KZD) (21 September 2020)

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Citation: [2020] ZAKZDHC 46
Court: Kwazulu-Natal High Court, Durban
Jurisdiction: South Africa
Case Number: 2629/2017
Procedural Posture: CONTENT FILTERED
Outcome: __CONTENT_FILTERED__
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IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL LOCAL DIVISION, DURBAN

Reportable

CASE NUMBER: 2629/2017

In the matter between:

OLIVE MARKETING CC

Plaintiff

and

EDEN CRESCENT SHARE BLOCK LIMITED

First Defendant

ETHEKWINI MUNICIPALITY

Second Defendant

SHEPSTONE AND WYLIE

First Third Party

ANTHONY MAURICE SCOTT

Second Third Party

GEOFFREY NORMAN OLDFIELD

Third Third Party

DARRYL MARTIN SCHOU

Fourth Third Party

JONATHAN NEIL BERGER

Fifth Third Party

WILLIAM MICHAEL SIMPSON

Sixth Third Party

EDEN CRESCENT SHAREBLOCK LIMITED

Seventh Third Party

REGISTRAR OF DEEDS, KWAZULU-NATAL

Eighth Third Party

This judgment was handed down electronically by transmission to the parties' representatives by email and circulated by SAFLII. The date and time for hand down is deemed to be 09h30 on 21 September 2020.

ORDER

The following order is issued:

1. It is declared that Deed of Servitude K173/97 registered in the KwaZulu-Natal Deeds Registry on 18 February 1997 was from date of registration, and is, valid.

2. The First Defendant is ordered to make available on Erf 11496 Durban parking bays for at least 250 motor vehicles for the exclusive use of the patrons of Erf 12424 Durban.

3. The First Defendant is ordered to deliver to the Plaintiff's attorneys, within 10 days of the date of the order:

3.1 A list of 250 parking bays allocated for the exclusive use of the Plaintiff's patrons; and

3.2 The tariff of charges determined in accordance with provision (c) of Deed of Servitude K173/97. The basis of the determination of the charges is to be furnished with the tariff.

4. The Plaintiff's claim for damages against the First Defendant succeeds to the following extent:

4.1 The First Defendant is held liable to pay to the Plaintiff damages sustained by the Plaintiff in consequence of the First Defendant's

failure to permit the Plaintiff to exercise its right to parking under the servitude identified in para 1 above.

4.2 The damages in paragraph 4.1 shall be computed from 18 April 2010, as any claim for damages prior to that date has prescribed.

4.3 The damages in paragraph 4.1 shall be inclusive of damages until the First Defendant performs under the servitude or tenders to do so.

4.4 The quantification of such damages is held over for later determination.

5. The First Defendant is ordered to bear the Plaintiff's costs of suit, such costs to include:

5.1 costs reserved on 25 March 2010 and 18 September 2014, and

5.2 costs consequent upon the employment of two counsel, where so employed.

6. The Plaintiff's claim for damages against the Second Defendant is dismissed with costs, such costs to include the costs consequent upon the employment of two counsel, where so employed.

7. The Second Defendant's Third Party claim against the First Third Party is dismissed with costs, such costs to include the costs consequent upon the employment of two counsel, where so employed.

8. The Second Defendant's Third Party claim against the Second Third Party is dismissed with costs.

9. The Second Defendant's Third Party proceedings against the First Defendant/ Seventh Third Party is dismissed, with no order as to costs.

10. The Second Defendant is ordered to pay the wasted costs occasioned by the stand-down of the matter on 14 and 16 November 2017.

JUDGMENT

Delivered on 21 September 2020

Moodley J:

Introduction

[1] The Durban beachfront, dubbed the Golden Mile, and the many entertainment and sports facilities in its proximity, have remained

major attractions for tourists to the city and its local inhabitants over the years. An inescapable consequence of the high volume of visitors to these attractions is the concomitant increase in the volume of traffic, which in turn creates a demand for convenient and secure parking facilities. Prospective patrons and clients are frequently deterred from enjoying an entertainment facility or utilising the services of a business by the inconvenient or limited parking in proximity to the premises visited. When the City Council approved the development of the Ocean City Complex and ice rink near the Golden Mile, it attempted to ensure that the project would not be scuppered by the lack of parking facilities.

[2] To alleviate the problem of limited parking in proximity to the ice rink, the City Council, when leasing the property adjoining the Ocean City Complex, included the condition in the leasehold agreement, that the lessee would make 250 parking bays on the leased property available for the exclusive use of patrons and users of the ice rink. When the adjoining property was eventually sold, the condition was carried forward. A material term of the sale agreement was that 250 parking bays would remain available to the Ocean City Complex, and a parking servitude would be registered by the purchaser to secure in perpetuity the benefit of the 250 parking bays for the owner and developer of the ice rink. The main issue for determination at this stage of the trial is the validity of the parking servitude.

The parties and cause of action

[3] The Plaintiff, Olive Marketing CC, is the registered owner of Erf 12424 Durban[1] ('the Plaintiffs property'). The Plaintiff purchased the property from the Second Defendant, the eThekwini Municipality, in terms of an agreement of sale dated 22 September 2008, which recorded that the property has the benefit of a parking servitude. The title deed of the property, Deed ofTransferT034297/09, record that the property is held '[w]ith the benefit of a Parking Servitude over Erf 11496 Durban as created in the Notarial Deed of Servitude No. K173/97S ['the servitude']'.[2]

[4] The First Defendant, Eden Crescent Shareblock Limited owns Erf 11496 Durban, the property which adjoins the Plaintiff's property and is the servient tenement in respect of the servitude ('the First Defendant's property'). The First Defendant acquired the leasehold

rights and purchased its property from the Second Defendant in terms of a written agreement of sale concluded on 28 July 1994. A material term of the agreement was that a parking servitude for 250 vehicles would be created over the First Defendant's property in favour of the Plaintiff's property and registered by Notarial Deed of Servitude simultaneously with registration of transfer of the property. The agreement also recorded that the property was to be developed in accordance with all relevant Municipal Bylaws and Town Planning Scheme Regulations, and would only be used for the purpose defined in s 4C of the Housing Development Schemes for Retired Persons Act 65 of 1988 ('the HDSRP Act'). The First Defendant therefore was obliged to provide parking bays for its residents in compliance with the Town Planning Scheme Regulations and 250 parking bays under the servitude for use by patrons of the Plaintiff's property.

[5] The transfer of the First Defendant's property was registered on 16 April 1996 under Deed of Transfer T9724/96. The parking servitude was registered under Deed of Servitude K173/97 on 18 February 1997 and Deed of Transfer T9724/96 was endorsed with the servitude simultaneously.

[6] From about 2004, the First Defendant refused to comply with the Plaintiff's attempts to enforce the servitude and access parking on the First Defendant's property, or to make parking available to Skating Enterprises Inc, which held a lease over the Plaintiff's

property. In 2005, the First Defendant disputed the validity of the Deed of Servitude. The Plaintiff and the Second Defendant in turn persisted that that the Deed of Servitude was valid and that the First Defendant was obliged to create additional parking spaces on its property to provide 250 parking bays for the Plaintiff's use. The First Defendant refused and litigation ensued.

Litigation history and the pleadings

[7] On 2 March 2010, the Plaintiff launched an application against the First Defendant for an order, inter alia, enforcing the servitude. On 25 March 2010, the Court ordered that the application be referred to trial and that the Second Defendant be joined as an interested party. The Plaintiff delivered a declaration in April 2010.[3] By way of a notice to amend its declaration served on 17 April 2013, and an amended declaration delivered in May 2013, the Plaintiff

introduced a claim for damages against the First Defendant.

[8] The Plaintiff seeks an order declaring the parking servitude over the First Defendant's property valid and enforceable; directing the First Defendant to make available parking facilities for at least 250 motor vehicles on its property for the exclusive use of the Plaintiff's property; and, to pay the Plaintiff's damages calculated from March 2010 in the sum R6 680 000 together with interest.[4]

[9] The Plaintiff's claim against the Second Defendant is in the alternative to the claim against the First Defendant, and conditional

upon the Court finding that that there exists no valid parking servitude over the First Defendant's property. Such a finding will

trigger a breach of the contract between the Plaintiff and the Second Defendant and the Plaintiff's claim for damages in the total amount of R72 751 000 against the Second Defendant.

[10] The First Defendant opposes the relief sought against it by the Plaintiff and denies that the Notarial Deed of Servitude constitutes

or establishes a servitude, and/or that the deed was validly registered. The First Defendant also denies that the Deed of Servitude conveyed any rights with respect to its property because:

(a) No servitude diagram demarcating the survey area was attached to the Deed of Servitude, rendering the servitude invalid by virtue of reg 73(2) made in terms of s 10 of the Deeds Registries Act 47 of 1937 ('the Deeds Registries Act').

(b) The deed sought to record and convey rights, the exercise of which would be in conflict with the Town Planning Scheme and ss 7 and 4A of the HDSRP Act. The Town Planning Regulations for parking require the First Defendant to provide a minimum of 135 parking bays for its own residents. As there were only 311 parking bays available on the First Defendant's property, the provision of parking for 250 cars to the Plaintiff in compliance with the servitude, would have placed the First Defendant in breach of the Town Planning Regulations.

(c) The Deed of Servitude was registered after the transfer of the First Defendant's property. It therefore amounted to an alienation of immovable property as contemplated by the provisions of s 8(1)(c) of the Share Blocks Control Act 59 of 1980 ('the Share Blocks Control Act'), which required a special resolution of the shareholders of the First Defendant, which did not take place. Further, the grant of the servitude constituted an alienation of land as contemplated by the provisions of s 4B of the HDSRP Act, which required the consent of at least 75 per cent of the holders of rights of occupation in the Housing Development Scheme, which was not obtained.

(d) The terms in the deed were vague and inadequate to describe the rights and obligations created under the deed.

[11] The First Defendant further pleaded prescription of all damages allegedly sustained more than three years prior to 17 April 2013, when the cause of action for the damages claim was introduced.

[12] The Second Defendant has defended the action and raised two special pleas. The first special plea is that the Plaintiff's claim against it has been extinguished by prescription in terms of the provisions of Chapter 111 of the Prescription Act 68 of 1969 ('the Prescription Act'). In the alternative, the Second Defendant pleads that clause 8.1 of the sale agreement contains a voetstoots clause, which excuses the Second Defendant from any liability to the Plaintiff by reason of all defects in the property, whether patent or latent.

[13] On the merits, the Second Defendant avers that the Deed of Servitude is valid and was validly registered, and the purchase of the First Defendant's property burdened by the conditions relating to the servitude was duly authorised. It denies that the Deed of Transfer or the Deed of Servitude conflicts with any of the provisions of the Town Planning Scheme, the Share Blocks Control Act, the HDSRP Act or any other legislation. The Second Defendant avers that the First Defendant's failure to provide parking for the users or patrons of the Plaintiff's property constitutes a breach by the First Defendant of its obligations under the sale agreement and/or the Deed of Transfer and/or the Deed of Servitude and/or the provisions of the Town Planning Scheme. The Second Defendant avers further that the First Defendant is reasonably able to provide parking for patrons or users of the Plaintiffs property, thereby fulfilling its aforesaid obligations.

[14] The Second Defendant also delivered a conditional claim in reconvention in the event that the First Defendant's claim that the servitude is invalid is upheld, seeking rectification of the sale agreement concluded between the First Defendant and the predecessor-in-title to the Second Defendant on 28 July 1994 and the Deed of Servitude. It joined the Registrar of Deeds for the Province of KwaZulu-Natal as the Third Defendant in Reconvention.

[15] The Second Defendant further instituted Third Party proceedings and joined to the litigation:

(a) As First Third Party, Shepstone and Wylie, a firm of attorneys, conveyancers and notaries, whom it instructed to attend to the agreements and conveyancing transactions for the transfers of the properties and the Notarial Deed of Servitude. In the event of the servitude being declared invalid and/or in the event of it being held that the Plaintiff is entitled to damages against the Second Defendant, the Second Defendant avers that such damages will result from a breach by the First Third Party of its obligations to the Second Defendant. Such breach will entitle it to damages, alternatively, an indemnity from the First Third party for payment of any damages or costs award against the Second Defendant in favour of the Plaintiff and all attorney and client costs incurred by the Second Defendant in defending these proceedings.

(b) As Second to Sixth Third Parties respectively, Anthony Maurice Scott, Geoffrey Norman Oldfield, Jonathan Neil Berger, William Michael Simpson, and Darryl Martin Schou,[5] who as directors of the First Defendant, purportedly authorised the registration of the servitude and the Second Third Party to sign all necessary documents for such registration. If the Court finds that the servitude is void because the granting and/or registration of the servitude exceeded the powers of the First Defendant, and the Second Defendant is prejudiced by the award of damages or costs in favour of the Plaintiff, the Second Defendant then seeks an order holding the Second to Sixth Third Parties personally liable jointly and severally to the Second Defendant therefor.

(c) As Seventh Third Party, Eden Crescent Shareblock Limited, in respect of the rectification as sought in its conditional counterclaim, and as the enforcement authority of the Second Defendant's Town Planning Scheme ("the Scheme") regulated activities and/or the use of the First Defendant's property.

(d) As Eighth Third Party, the Registrar of Deeds for the Province of KwaZulu Natal, by virtue of the relief sought by the Second Defendant and the Registrar's duties in terms of s 3 and generally the Deeds Registries Act.

[16] The First Third Party joins the Plaintiff and Second Defendant in disputing the validity of the objections to the servitude. It contends further that the Plaintiff has no enforceable claim against the Second Defendant. If the Court were to find that the Plaintiff is not vested with a remedy against the First Defendant, then the Plaintiff's proper remedy would be to compel the Second Defendant to enforce the Town Planning Scheme and/or its written agreement with the First Defendant. It avers further that the Plaintiff's damages, if any, are caused by its failure to institute a claim to compel performance by the Second Defendant.

[17] The First Third Party pleads that its own conduct cannot be causative of any damages because inter alia the Second Defendant failed to enforce the relevant Municipal Planning Scheme, or compel specific performance by the First Defendant, or to exercise its contractual rights arising out of the First Defendant's breach of its obligations under the sale agreement. The First Third Party further pleads that in concluding the agreement, the First Defendant (represented by its duly authorised representatives) provided the requisite resolutions to conclude the agreement and which also implicitly authorised the registration of the servitude. It seeks judgment in the Third Party proceedings in its favour against the Second Defendant, alternatively, for an order dismissing the Second Defendant's Third Party action against it with costs.

[18] The Second Third party entered the fray belatedly because of short service of the notice of set down by the Second Defendant. He disputes the service of the Third Party Notice and raises three special pleas viz no cause of action, prescription and infringement

of his constitutional right of access to the Courts within a reasonable time. On the merits, the Second Third Party pleads that he acted honestly and reasonably in carrying out his responsibilities on behalf of the First Defendant, and joins with the Second Defendant in its defence predicated on the Share Blocks Control Act and the HDSRP Act. He seeks the dismissal of the Second Defendant's Third Party action against him with costs.

[19] The Seventh Third Party effectively relies on the defences raised in the First Defendant's plea to the Second Defendant's conditional

claim in reconvention and seeks dismissal of the Second Defendant's Third Party action against it with costs.

Separation of issues

[20] At the outset of the trial, the parties indicated that they had agreed that the issue of quantum should be separated and the

following order was granted:

'In terms of Rule 33(4) it is ordered that all issues relating to the quantification of the Plaintiff's damages claims against the First Defendant and/or the Second Defendant will stand over for later determination, if necessary, after the determination of the other issues in the trial.'

Evidence presented at the trial

[21] The Plaintiff and First Defendant each called one witness. The Second Defendant called one witness, and the affidavit of Ms Rosemary Treadway ('Ms Treadway') was admitted by consent. The First and Second Third Parties closed their cases without leading any evidence.

Witness for the Plaintiff: Mr Sastri Ramiah ('Mr Ramiah')

[22] Mr Ramiah, who with his wife, are the members of the Plaintiff close corporation, testified that when the Plaintiff acquired Erf 12424 Durban, it was aware that it was obliged to build an Olympic-sized ice rink, and that there was a parking servitude over the First Defendant's property. The sale agreement for the property was signed five years after the Plaintiff's offer to purchase was accepted. In 2005, prior to the finalisation of the sale, Mr Ramiah chanced upon an advertisement for the sale of parking bays on the First Defendant's property. When he enquired about the advertisement with Trafalgar Property Management ('Trafalgar'), the managing agents for the First Defendant, Trafalgar responded by letter dated 21 July 2005 that there were currently no plans to sell the parking bays.

[23] Skating Enterprises Inc, a non-profit skating body that operated the old ice rink, the Plaintiff and the Second Defendant concluded two tripartite agreements to ensure that Skating Enterprises would get requisite use of the ice rink from the Plaintiff. Thereafter, the statutory notice of the proposed sale of the property to the Plaintiff was published. The First Defendant and another party lodged objections. Nevertheless, the Second Defendant signed the sale agreement, which recorded the benefit of the parking servitude. The Plaintiff took occupation of the property on 1 December 2008, prior to the registration of transfer in 2009.

[24] The Plaintiff developed the property and opened the new multifunctional ice rink in 2015 for leisure skating and use by sports clubs. It converted the abandoned cinema complex during 2009/2010 into the multifunctional Olive Convention Centre, consisting of an auditorium, meeting rooms and other facilities.

[25] After the registration of transfer of the property, Mr Ramiah met with the directors of the First Defendant to discuss the Plaintiff's use of the 250 parking bays in terms of the servitude. After the meeting, he received a proposal from the First Defendant that it would permit the Plaintiff parking provided that he admitted that the Plaintiff did not have a parking servitude. Mr Ramiah responded[6] by suggesting that the First Defendant make the basement and the top floor available for parking as discussed at the meeting, and provide a quote for the cost.

[26] When the First Defendant refused to recognise the servitude, Mr Ramiah approached Attorneys Ngwenya Zwane, who attended to the transfer of the property, for assistance. They advised him that a survey diagram had not been required because a general servitude was registered. He also approached the Second Defendant for assistance. One Vanessa Wood who was employed by the Second Defendant confirmed to him that there was a parking servitude over the First Defendant's property. She referred him to the sale agreement between the First and Second Defendants and specifically paragraph 15.3 thereof.[7] As Mr Ramiah was satisfied that 250 parking bays on the First Defendant's property were validly allocated for the Plaintiff's use,

he proceeded with the application to the High Court, which led to the trial.

[27] Mr Ramiah testified that he undertook an exercise in person to determine which of the bays could be conveniently used by the Plaintiff and which by the First Defendant, as there were more than 250 parking bays. He obtained a microfilm of the layout of the parking bays at the First Defendant's property, counted the parking bays and made notes of his observations on the plans, and compiled a report from his investigations.[8] He ascertained that parking bays had been rented out by the First Defendant and were also used for other purposes. One business

occupied a substantial number of bays while other businesses occupied smaller areas of the parking.

[28] Mr Ramiah described the challenges experienced by the Plaintiff as a result of the shortage of parking and the various unsuccessful

attempts to provide temporary parking. It lost a number of prospective clients because of the lack of adequate parking and·

receivedpoor reports in the media. Safe and convenient parking is one of the key factors for a conference venue and there is no public parking in the area. Mr Ramiah reiterated that the Plaintiff bought the property and invested a substantial amount of money in its development on the basis that parking would be a key part of the property. Without the benefit of the parking, the Plaintiff was unable to generate adequate rental income to meet its commitments.

[29] Under cross-examination, Mr Ramiah confirmed that the Plaintiff was aware of the challenge to the servitude by the First Defendant prior to the finalisation of the sale and the registration of transfer of the property, but it proceeded with the transaction because the Second Defendant confirmed that there was a valid parking servitude. It also refused to exercise its option to resile from the sale because of the First Defendant's objection to the sale and denial of the validity of the servitude. Mr Ramiah confirmed further that the Plaintiff did not contemplate a claim for damages against the Second Defendant until the Second Defendant was joined by an order of Court. However, he had expected the Second Defendant to resolve the dispute about the servitude with the First Defendant.

[30] Mr Ramiah also confirmed that his inspection revealed that only 263 of the 324 parking bays were available for parking because the First Defendant had let out some areas for other purposes. He was cross-examined by Mr Kemp SC, for the First Defendant, on the lack of specifics in respect of the allocation of parking bays and the charges to be levied in the registered terms of the servitude, which impacted on the implementation of the servitude. Mr Ramiah responded that the bays were available and the allocation thereof could be negotiated. Insofar as the charges were concerned, the servitude set out a benchmark and that a bulk rate could be negotiated within those parameters. The First Defendant was effectively indemnified from loss as either the users of the parking bays from the conference centre or the Plaintiff would pay the costs of the allocated bays. The Plaintiff had not tendered payment of the parking costs as the servitude provided for a charge to be levied for the parking. Mr Ramiah also persisted that the use of the parking would not impact adversely on the aged residents on the First Defendant's property.

Witness for the First Defendant: Ms Nicola Shilton ('Ms Shilton')

[31] Ms Shilton, who is employed by Trafalgar and occupies offices on the First Defendant's premises, testified that she was involved in the management of the First Defendant for the periods from 1997 to 2001, and thereafter from 2008 to date of her testimony. In the intervening period between 2001 to 2008, Mr Richard Hancox ('Mr Hancox') managed the First Defendant. In 1997, Ms Shilton took minutes at the First Defendant's meetings. She confirmed that Mr Wright, who represented the bondholder NBS Bank at the First Defendant's meetings, knew of the servitude and advised the directors about it in 1998. From 2008, Ms Shilton attended the First Defendant's meetings but did not take minutes. She was aware that the First Defendant disputed the validity of the servitude with the Plaintiff.

[32] Ms Shilton testified that the operation of the old age home on the First Defendant's property commenced in 1993 and that the first share transfers were registered in December 1994. There are 185 residential suites currently occupied by 200 residents and 75 service staff. The parking bays were preferably let to residents on the property, but the extra bays were leased to residents of the neighbouring block of flats and to companies. Carpets Unlimited leased space in the basement in which they constructed offices. When Carpets Unlimited left, the Oceanic Hotel rented space for storage. The parking bays were only sold to the First Defendant's residents except for one parking which was sold to an outside person. The sales were put on hold as a result of the dispute about the servitude. Ten to 15 bays were utilised as a storage area. There was only one other parking garage in the area viz the North Beach parking garage where undercover parking was available at R 350 per month.

[33] Ms Shilton confirmed the current use and occupation of the parking bays on the First Defendant's premises.[9] She testified further that in addition to the parking required by residents, the First Defendant required parking for staff, contractors and visitors. Between ten to 20 parking bays were allocated for visitors and contractors, and a further ten to 20 bays were allocated for staff. There is also a designated ambulance parking. She confirmed that two bays on the top floor were taken up by the air-conditioning plant but was uncertain whether the water pumps and reticulation system in the basement occupied two to three parking bays. She confirmed that the minutes of the meeting of the shareholders on 17 September 1996[10] set out the history of the matter correctly.

[34] Under cross-examination, Ms Shilton confirmed that the dates of appointment and resignation of the directors of the First Defendant were correctly recorded in the copies of the CM29 dated 3 May 1993, 20 March 1996 and 26 February 1998.[11] She confirmed further that the directors resigned after the developers were unable to meet their commitments. As she had no relationship with the First Defendant on 17 July 1996, she had nothing to do with the special resolution by the directors in respect of the servitude.

Witness for the Second Defendant: Mr Gerald Clarke ('Mr Clarke')

[35] Mr Clarke, a Regional Co-ordinator within the Environmental Planning and Climate Protection Department, has been in the employ of the Second Defendant since 1985. He testified that he examined documentation, including the Town Planning register, relating to the legality of Special Zone 10 with the objective of ascertaining the legality of the 250 parking bays to be made available on the First Defendant's property, and compiled a report.[12] He explained how Special Zone 1O came into effect on 30 January 1967. With reference to his report, Mr Clarke testified to the resolutions and regulations adopted by the Durban City Council (as the Second Defendant was then known), in chronological order, which pertained to the First Defendant's property. In summary:-

(a) On 14 February 1966 - the Council approved an application to convert part of the Ice Drome to a cinema, subject to a long term lease to provide 250 parking bays to the rear of the property. The lease agreement was later amended to reflect 232 parking bays.

(b) On 17 June 1966 - the Administrator consented to the amended lease.

(c) On 30 January 1967 - the Council adopted the resolution rezoning Lots 69, 70 and 71 (now the First Defendant's property). The following provision applied to the new zone:

'The area shall only be used for the parking of vehicles, and be fenced, hardened, arranged and laid out and means of ingress and egress established all to the satisfaction of the City Engineer .'

Effectively parking had to be provided for the cinema on the adjoining property, presently the First Defendant's property. The Council also intended to develop the land for general residential purposes, and was negotiating a lease agreement with the Durban Holiday Inn (Pty) Ltd ('the Holiday Inn'). The Town and Regional Planning Commission while amending the regulations, opined that in order to safeguard the provision of parking, a sub-clause should be inserted into the regulations and the aforesaid lease which provided that 250 parking bays 'be reserved exclusively for use by the patrons of the cinema and/or lcedrome'.

(d) On 13 October 1971 - Minutes of Planning Committee recorded the following:

'(iv) Rezoning of Lots, 69,-70 and 71 Block Snell of Town Lands of Durban to Permit of Holiday Inn : Land adjoining Ocean City : In reply to question raised by the Mayor, the City Engineer advised that the developers had indicated that a certain amount of parking would be available during the construction of the building but could not give an undertaking that the full complement of parking would be available. The City Engineer expressed the view that difficulty would be experienced in complying with the directive of the Town and Regional Planning Commission that the 250 parking spaces to be provided are to be reserved exclusively for use by patrons of the cinema and/or Ice Drome. Various ways of overcoming this problem were suggested but it was felt that these proposals would be impractical to enforce on all occasions and it was agreed that no further action be taken other than stipulating this condition in the scheme amendment and the lease. Accordingly it was

RESOLVED TO RECOMMEND :

(a) That, subject to the draft lease with Durban Holiday Inn (Pty.) Limited being entered into and so framed to ensure that parking will be available at the relevant times for the cinema patrons and provision is made to enforce this condition, the Town Planning Scheme as approved by the City Council on 19th December, 1952, and as amended from time to time, be further amended by altering the condition applicable to Special Zone No. 10 to read as follows :-

"(i) The area shall be used for general residential purposes in accordance with the provisions applicable to Ocean Beach, Addington-Point and Esplanade General Residential Zones, as modified to the extent indicated hereunder:

(a) In addition to the parking spaces required in respect of any residential building erected on the lots within the area, 250 parking spaces shall be provided within such building or on such land for the exclusive use by patrons of the Cinema and/or lcedrome existing on Lot 26, Block Snell, Town Lands of Durban.

(b) the parking required in respect of (a) above shall be laid out and constructed and at all times maintained to the satisfaction of the City Engineer and the points of ingress and egress to the parking facilities shall be subject to the approval of the City Engineer;

(e) On 18 October 1971 - the Council adopted a resolution, which amended the Town Planning Scheme by altering the conditions applicable to Special Zone 10, subject to the lease with the Holiday Inn being entered into in order to ensure parking would be available for the patrons of the cinema as follows:

'(i) The area shall be used for general residential purposes in accordance with the conditions applicable to Ocean Beach, Addington-Point and Esplanade General Residential Zones, as modified to the extent indicated hereunder-

(f) On 28 August 1972 - the Council adopted the Central District Planning Project Scheme (COPP Scheme) in the format found in the City

Engineer's report prepared in December 1971. Attached to that report was a document referring to Special Zone 10 General Residential and Parking Zone.[15] The relevant extract reads:

(d) '(1) The area shall be used only for general residential purposes in accordance with the provisions of this Scheme applicable to the General Residential 5 Zone, as modified to the extent indicated hereunder:-

(e) (a) In addition to the parking spaces required in respect of any residential building or licensed hotel erected on the lots within the area, 250 parking spaces shall be provided within such building or on such land for the exclusive use by patrons of the cinema and the icedrome existing on Lot 26, Block Snell, Town/ands of Durban’[16]

(f) Apart from a slight change in the wording, the obligation to provide 250 parking spaces on the First Defendant's property remained.

(g) On 3 October 1973 - the Town Planning Technical Sub-Committee approved the amendment to the Town Planning Scheme by the substitution of all existing regulations with a comprehensive set of Town Planning Regulations.

(h) On 14 December 1973 -the comprehensive set of Town Planning Regulations were presented to the Council.

[36] Mr Clarke confirmed that from 1973 to the present date, the Town Planning Scheme for Special Zone 10 has remained unchanged and therefore, the Town Planning Scheme stipulates that 250 parking bays have to be provided on the First Defendant's property.

[37] Mr Clarke also compiled an application history from the Town Planning register in respect of the First Defendant's property.[17] In summary, from 1972, the Holiday Inn had always factored in the 250 parking bays for the Ocean City Complex in its proposed plans and there were 385 bays in total. In 1974, the Holiday Inn applied for a relaxation of the parking requirements to convert a portion of the hotel parking. Permission was refused as '[t]he conditions of the lease made no provision for the relaxation of the 250 bays'. These applications were during the construction stage of the hotel. Similarly, an application by the Holiday Inn for a reduction of the parking bays from 348 to 327 by converting part of the basement parking area to other uses was also refused on 15 April 1982, as this would have resulted in a deficit of 21 bays.

[38] In 2006, the First Defendant in application 222/11/06 sought permission to convert the hotel to the retirement facility. The notes indicate that 92 bays were required based on one bay per two rooms for a residential building within General Residential 5 Zone, plus 250 parking bays. Therefore, 342 bays were required and 299 bays were provided, leaving a shortfall of 43 parking bays. The application was approved on 27 November 2006 with the shortfall. Mr Clarke was also referred to the declaration submitted by the First Defendant with building plan number 2221106, extracted from the records of the eThekwini Municipality, which states:

'I declare that I have personally checked the Title Deeds or any other document for the property concerned and that the proposed work is not contrary to any restrictive conditions or servitudes applicable thereto, and in the event of such contraventions will bear the sole responsibility to rectify aforesaid contraventions.'

[39] Mr Clarke opined that there was an obligation on the First Defendant as the applicant to draw the Municipality's attention to the servitude. If the declaration was incorrect, then the approval of the plan without the servitude was null and void. Although sub-clause 12(5)(a) of the Durban Scheme Regulations allows for a reduction or increase in the parking, Mr Clarke was unable to locate a motivation by the First Defendant or an official of the Second Defendant. Mr Clarke's opinion was that there was an obligation on the First Defendant as owner of the property, to bring the parking bays up to the requirements of the Scheme and it was not relieved of its responsibility to provide the necessary parking bays.

[40] Under cross-examination, Mr Clarke reiterated that the First Defendant ought to have declared the servitude in its 2006 application and shown where it was, but conceded that he could not say where the servitude was sited. Nevertheless, the onus was on the First Defendant to provide the information about the servitude or any restrictive condition, and the relevant department of the Second

Defendant would consider the application on the basis of the information provided.

[41] Mr Clarke reiterated that the regulations applicable to Special Zone 10 remained unchanged from 1973 and therefore applied to the First Defendant's 2006 application, although the Second Defendant no longer owned the property. In response to the proposition by Mr Kemp that it was improper for the Second Defendant to promulgate a condition to force a property owner to provide parking, Mr Clarke pointed out that there had been no objection to the condition or an application by the owner to amend the regulations in respect of the parking bays. Therefore, when the property was transferred to the First Defendant, the condition was carried forward.

[42] Mr Clarke also confirmed that the provision to provide parking for another property was not exclusive to the First Defendant's property and provided for in subsection 12(5)(a) of the Durban Scheme Regulations, which permits modification of parking provisions. He reiterated that although he could not comment on the servitude, in terms of the Town Planning Provisions, the First Defendant was obliged to provide 250 parking bays for patrons of the Plaintiff's property, and use was not restricted to cinema patrons.

[43] In respect of the number of parking bays the First Defendant was obliged to provide, Mr Clarke was of the view that the First

Defendant's architect may have provided the wrong ratio. He himself had examined the plan, counted the number of rooms and parking bays and then assessed his numbers against the requirement of the Scheme. The parking bays for the ambulance and visitors were included in the total of 299 parking bays. Mr Clarke confirmed that he had examined all specific plans and applications relevant to the First Defendant.

[44] In an undated statement,[18] Ms Treadway, who was previously employed by the Second Defendant from 1989 in its Real Estate Department, confirmed that the First

Defendant's property had historically been required to provide 250 parking bays for the Plaintiff's property. This requirement was recorded in the long lease between the Holiday Inn and the Second Defendant, which was ceded to the First Defendant. She also confirmed that the servitude over the First Defendant's property was registered after the registration of the transfer because a Certificate of Registered Title (CRT) for the Plaintiff's property was required for the registration of the servitude. She informed the attorney attending to the conveyancing, Mr G D Breytenbach ('Mr Breytenbach') of the First Third Party, that the Director: Real Estate held the delegated authority to waive a right provided there was no prejudice to the Second Defendant. She was not cautioned of any prejudice or potential prejudice to the Second Defendant if the servitude was not registered simultaneously with the transfer. To her knowledge, neither the First nor the Second Defendants intended to alter the fact that the servitude created in the sale agreement would be registered, albeit the registrations of the transfer and the servitude were not effected simultaneously. Ms Treadway was not aware that the servitude documents for signature by the First Defendant were not signed at the same time as the transfer documents.

Factual matrix

[45] The following detailed summary of relevant facts are distilled from the pleadings and evidence, which are undisputed or common cause and is intended to facilitate my conclusions on the issues for determination and evaluation of the merits or otherwise of the arguments advanced by counsel for the parties. There are no material disputes of fact that require resolution.

The acquisition and transfer of the First Defendant's property (Erf 11496 Durban)

[46] With effect from 23 February 1972, the Durban City Council (as the Second Defendant's predecessor-in-title) leased under Notarial Deed of Lease No 42/1972L, the First Defendant's property to the Holiday Inn for the purpose of erecting a hotel. Clause 9 of the lease imposed an obligation on the lessee to provide throughout the period of the lease, a minimum of 250 parking bays for the patrons of the Ice Drome and cinema on the adjoining property, for which the lessee could levy a charge consistent with the average charges charged by parking garages in the vicinity. This usage was also entrenched in clause 15.2 of the lease agreement between the City Council and the lessee of the ice rink.[19] When the lease to the Holiday Inn was renewed, and the lease sublet or ceded between or about 1991 and 1993 to Renhill Properties Shareblock Limited, the obligation to provide 250 parking bays remained extant.

[47] From August 1993, a property developer, Scott & Scott Property Investments CC (Scott & Scott), operated a retirement complex on the property. Scott & Scott obtained cession of the rights under the lease, together with the aforesaid obligation to provide 250 parking bays for the patrons of the Ice Drome. During or about June or July 1994, Scott & Scott and the Second Defendant agreed that the leasehold rights and the property would be acquired by the First Defendant for development as a Retirement Scheme, and the leasehold rights would be converted to freehold rights. The First Defendant[20] as a share block company was the corporate vehicle for the Retirement Scheme. At the time of the sale, the sole shareholder of the First Defendant was Scott & Scott.[21] In the purchase of the property and related conveyancing transactions, the First Defendant was represented by its directors, who were also the persons involved in the development company. Their authority to represent the First Defendant and the sale agreement is not in dispute.

[48] The First Defendant instructed Chennells Albertyn Brunton & Tanner Incorporated as its attorneys of record during the finalisation of the sale agreement, the execution of the conveyancing documents and the registration of the transfer of the property and the servitude. Chennels Albertyn attended to the signing of all the necessary documents by the First Defendant and made the payments due by the First Defendant for the registration of transfer and the servitude to the conveyancers. The firm also registered the mortgage bond in favour of NBS Limited over the First Defendant's property. Larson and Bruorton Incorporated and then Attorney Chris Brunton took the representation of the First Defendant over around 1996. Larson and Bruorton continued to represent NBS Limited.

[49] The Second Defendant instructed the First Third Party to attend to its transactions in respect of the properties of both the Plaintiff and the First Defendant. In order to protect its interests, the Director: Real Estate of the Second Defendant informed the First Third Party that the First Defendant was to continue to make the parking facilities available after the registration of transfer of the property, as had been done under the lease. He also instructed the First Third Party that as the property would be converted to freehold on registration of transfer; a praedial parking servitude had to be registered simultaneously to ensure that the First Defendant's successor-in title would remain bound to provide the same parking facilities.[22] Mr Breytenbach, the conveyancer at the First Third Party, duly drafted the proposed servitude and forwarded the draft servitude to the Second Defendant.[23] He also recorded that the conversion from leasehold to freehold could only be registered once the lease was ceded to the First Defendant.

[50] The memorandum of agreement dated 29 June and 28 July 1994[24] between the First and Second Defendants recorded the following material terms:

(a) Preamble 2 and clause 11.1:

'the Purchaser is in the process of acquiring in terms of Notarial Deed of Cession of a Lease the leasehold rights over the lot;'

'. . .Notarial Deed of Cession over the lot shall remain in effect until date of transfer.'

(b) Clause 3.1:

'The existing lease of the lot shall terminate on date of transfer.'

'USAGE/TOWN PLANNING ZONING

13.1 The lot shall only be used or developed in accordance with all relevant Municipal By-Laws and Town Planning Scheme Regulations in

force from time to time.

13.2 The lot shall only be used for the purpose defined in section 4C of the Housing Development Schemes for Retired Persons Act 65/1988.'

(d) Clause 15:

'PARKING SERVITUDE [per the proposed draft by the First Third Party]

15.1 It is recorded that in terms of clause 9 of Deed of Lease L42/72 registered in respect of this lot, the Lessee (and in this case the Purchaser) is obliged to provide and have available parking on the lot for at least 250 motor vehicles for the Lessee of the

adjoining property described as Lot 11444 Durban (the dominant tenement).

15.2 It is agreed that a parking servitude over the lot shall be created in favour of the dominant tenement and registered by Notarial

Deed of Servitude simultaneously with registration of transfer of the lot in the name of the Purchaser whereby parking for at least 250 motor vehicles is secured over the lot in favour of the dominant tenement. The costs of registering such servitude, which shall be prepared and registered by the City Council's Attorneys, including survey costs and the preparation of the survey diagram, shall be borne by the Purchaser.

15.3 The servitude shall contain, inter alia, the following conditions: -

15.3.1 The servitude area shall be used for the purpose of parking at least 250 motor vehicles and shall be made available for the exclusive use of the dominant tenement.

15.3.2 The Purchaser may charge a tariff for the use of the servitude area comprising the parking area which may not be more than the average amounts charged for a similar period of time for parking by parking garages in the vicinity of the lot.'

[51] The sale agreement was concluded before the shares in the First Defendant were sold and transferred.[25] On 7 December 1994, the freehold rights in favour of the First Defendant were registered.

[52] In a letter dated 6 March 1996, the Second Defendant advised the First Third Party that the diagram for the Certificate of Registered Title (CRT) for the Plaintiff's property was not available and the survey had not been effected. In order to avoid delaying the transfer of the First Defendant's property for which the CRT[26] was available, the servitude would be registered after the transfer and not simultaneously as provided for in the agreement of sale. The provisions for the necessary waiver and the preparation of the servitude documents and cover for costs of the servitude from the First Defendant were also set out in the letter and recorded in a memorandum of even date.[27]

[53] In accordance with these instructions, the transfer of the First Defendant's property was registered on 16 April 1996 under Deed of Transfer T9724/96, which records that the property is 'subject to a Housing Development Scheme as contemplated in Section 4 (c) (1) (a) of [Act 65 of 1988]'.

The registration of the servitude

[54] On 15 May 1996,[28] the First Third Party wrote to Mr Chris Brunton, who represented the First Defendant at the time, as follows:

'RE : EDEN CRESCENT SHARE BLOCK LIMITED

In terms of the Agreement of Sale with the City Council, the above Company must grant a parking servitude over the property in favour of the adjoining land.

We have now received Survey Diagrams of this land. Please would you request your client to sign the attached Special Power of Attorney, initial the draft deed and certify resolution, returning them to us with payment of our attached account.'

[55] On 19 June 1996, the First Third Party sent a reminder to Mr Brunton requesting the documents signed by the First Defendant and payment of its account. Mr Brunton forwarded the documents to the Second Third Party requesting him to sign the documents and return them directly to the First Third Party with the payment. The Special Power of Attorney was signed on 17 July 1996 by the Second Third Party under authority of the resolution of the directors of the First Defendant dated 17 July 1996.[29] At that date, the Second to the Sixth Third Parties were directors of the First Defendant. They resigned as directors on 15 November 1996.

[56] After the documents were returned to the First Third Party, a further delay was occasioned by the Deeds Registry requirement that the existing lease had to be cancelled before the servitude could be registered. The Parking Servitude K173/97S was registered on 18 February 1997 and was simultaneously endorsed on the holding deed of the First Defendant's property and the CRT No 4374/97 of the Plaintiff's property.[30]

[57] The Deed of Servitude[31] records:

(a) The First Defendant as "Grantor" of the servitude and that the Special Power of Attorney 'granted by ANTHONY MAURICE SCOTT acting under the authority of a resolution dated 17 July 1996'.

(b) The servitude is granted and created over the dominant tenement 'in perpetuity, together with all the rights necessary and incidental to the use and enjoyment thereof, a certain Servitude to provide parking for at least 250 motor vehicles over the [servient tenement]'.

(a) The. . .preparation and registration of the Deed of Servitude, including survey costs and preparation of the survey diagram, shall be borne by the Grantor.

(b) The Servitude area shall be used for the purpose of parking at least 250 motor vehicles and shall be made available for the exclusive use of the dominant tenement.

(c) The Grantor may charge a tariff for the use of the servitude area comprising the parking area which may not be more than the average amounts charges for a similar period of time for parking, by parking garages in the vicinity of the servient tenement'.

The purchase and transfer of the Plaintiff's property

[58] The Developer's Brief for the sale and redevelopment of the Ocean City Complex and ice rink issued by the Second Defendant stated that there was a parking servitude, which secured parking for at least 250 motor vehicles for the exclusive use of the patrons of the Ocean City Complex. The Plaintiff, represented by Mr Ramiah, submitted an offer to purchase and redevelop the property on 19 September 2003.

[59] In September 2008, the Plaintiff, the Second Defendant and Skating Enterprises entered into an agreement in terms of which Skating Enterprises' registered lease over the ice rink would be cancelled and the terms and conditions under which Skating Enterprises would be entitled to use the ice rink when the transfer of the property to the Plaintiff was registered, were set out. The three parties also entered into a Property and Ice-Rink Development Agreement, the purpose of which was to set out the terms and conditions of the redevelopment of the property by the Plaintiff, which included the construction of an Olympic-sized ice rink for use by bona fide sporting bodies at a reasonable cost.

[60] Despite objections lodged by the First Defendant, the Municipal Manager approved the sale, and the Plaintiff and the Second Defendant concluded the sale agreement for the Plaintiff's property on 22 September 2008. Clause 8.3 of the agreement provides:

'8 VOETSTOOTS/SERVITUDES AND CONDITIONS OF TITLE

8.3 It is recorded that a parking servitude has been created and registered over the adjoining property described as Erf 11496 Durban in favour of the PROPERTY under Deed of Servitude K173/1997s, a copy of which is annexed hereto as Annexure C, whereby parking for at least 250 motor vehicles has been secured for the exclusive use of patrons or users of the PROPERTY.’[32]

[61] The transfer of the property was registered on 21 September 2009, and the servitude duly recorded as a benefit in the Deed of Transfer T034297/09.

The dispute

[62] In a letter dated 21 September 2004, the portfolio manager of Trafalgar, Mr Hancox, wrote to the Second Defendant requesting that the Second Defendant 'consider cancelling the servitude'.[33] The reasons advanced were that fewer parking bays were available than the allocation planned for the Holiday Inn. The First Defendant had only allocated area for 315 parking bays. If 250 bays were made available to the Plaintiff, then only 65 bays were available for use by the First Defendant. The Plaintiff had only used the parking on one day, when approximately 60 bays were used twice. Further, the First Defendant had not charged a 'long term rent'. Therefore, as use in compliance with the provisions of the servitude was not economically viable, 40 bays had been sold to the residents of the complex, 70 undercover bays leased to residents and 70 leased to casual non-residents for periods up to 12 months.

[63] By letter dated 17 January 2005, the Second Defendant responded that the servitude could not be cancelled but the purchaser of the ice rink could be approached directly. On 18 April 2005, after Mr Ramiah inspected the First Defendant's property to assess the parking, Mr Hancox applied, on the instructions of the directors of the First Defendant, to the Second Defendant for a reduction from 250 to 120 parking bays to be made available to the Plaintiff and requested a meeting to identify the location of the 250 parking bays.

[64] In July 2005, the First Defendant appointed Attorneys BES Agar and Associates to investigate the status of the servitude. In his letter dated 29 July 2005 to Mr Ramiah, Mr Agar raised for the first time the validity of the servitude and requested clarification of 'the precise situation of the alleged servitude area'.

[65] In a letter dated 26 May 2008,[34] the First Defendant addressed with the Second Defendant, the problematic nature of the servitude which rendered it invalid as follows:

(a) The servitude was not registered contemporaneously with the transfer.

(b) The alleged existence of the servitudal rights came to its attention in 2005 when the Plaintiff addressed the issue of parking.

(d) The allocation of 250 parking bays to the Plaintiff would be in breach of clause 12(1)(a) of the Town Planning Scheme.

(e) No special resolution required by s 8(1)(c) of the Share Blocks Control Act, nor any resolution under the HDSRP Act could be located. '(It will be appreciated that it was the developer who owned the shares in Eden Crescent when it bought the property from the Council, and originally agreed to the establishment of servitudal rights some years before the servitude itself was registered.)

[66] After a meeting between the Defendants on 2 June 2008, in a letter dated 26 June 2008,[35] the Second Defendant recorded that:

(a) Clause (b) of the servitude stipulated that 250 parking bays would be made available for the exclusive use of the Plaintiff's property.

(b) The provision was contained in clause 15 of the sale agreement between the First and Second Defendants and acceptance thereof confirmed by the signature of both parties.

(c) The First Defendant could lodge an objection to the sale of the ice rink property in response to the statutory notice of the proposed sale.

[67] The First Defendant lodged its objection to the statutory notice, to which it annexed its aforesaid letter dated 26 May 2008. In a letter dated 17 July 2008[36] to the Director: Real Estate, it pointed out further that:

'Clause 15 of the Agreement. .. requires a servitude diagram to delineate the parking area, that is, a diagram prepared by a surveyor and approved by the Surveyor General. .. Without a survey diagram it is impossible to determine the parking area.'

Despite the objection, the sale was concluded and transfer of the Plaintiff's property with the benefit of the servitude was registered.

The Creation, Nature and Terms of a Praedial servitude and the Registration thereof

[68] It is common cause that the servitude in dispute is a praedial servitude in land. The author Hall in Servitudes states '[u]nder our common law praedial servitudes are constituted in favour of a particular praedium and are by nature perpetual and once they are properly and legally established they become immutable between the parties unless the parties agree to alter their effect'.[37] A praedial servitude in land is constituted by means of a deed executed by the owner of the dominant land and the owner of the

servient land registered against the title deed of the servient land.

[69] The authors of The Law of Servitudes and Lawsa write, '[t]here is no numerus clausus of praedial servitudes in South African law, with the result that landowners can create praedial servitudes that do not conform with or fall into any of the established categories, provided they comply with the general validity requirements for praedial servitudes and the establishment requirements that apply to all servitudes in land'.[38] The Constitutional Court in Tshwane City v Link Africa & others[39] confirmed servitudes are now "'practically unlimited" although certain general requirements have to be fulfilled'.[40] A parking servitude is one of the praedial servitudes permitted under modern property law.[41]

[70] At page 192 of The Law of Servitudes, Van der Walt writes:

'The majority of servitudes are created on the basis of contract and therefore... interpretation of the servitude-creating contract should play a role in establishing what the nature and content of these servitudes are and, by extension, in solving conflicts between the servitude holder and the servient owner... the relationship between the servitude holder and the servient owner is determined with reference to the servitude-creating contract, if the servitude grant is clear and unambiguous, by giving their grammatical meaning to the words used in the contract.' (Footnote omitted).

[71] Praedial servitudes must have some utility for the holder. Van der Walt writes further:

'... the servient tenement must support or enhance the use or increase the usefulness of the dominant property... The utility of the servitude for the dominant land does not have to refer to the current use of the property only; it could refer to future exploitation of the dominant land, but any reference to future use must find support in a realistic potential for that use that will probably realise... the utility requirement is satisfied whenever the servitude increases the usefulness and beneficial exploitation of the dominant land according to its industrial or economic destination [and] increases the economic value of the dominant land.'[42] (Footnotes omitted).

[72] At page 195, Van der Walt writes:

'... the mere existence of a property-creating contract does not mean that a servitude in fact exists, because the creation of servitudes is regulated by property principles, some of which are not open to contractual avoidance or amendment. .. On the other hand, even if there is proof of a servitude created on the basis of a contract, the nature and content of that servitude are established by interpretation of the contract, but the interpretation process is limited and guided by property principles, including peremptory principles that regulate the nature of particular kinds of servitude and other, non-peremptory principles that determine the nature and content of servitudes unless the contract explicitly provides otherwise. . .The preferred approach is stated authoritatively in an oft-cited passage in Willoughby's Consolidated Co Ltd v Copthall Stores Ltd:[43]

"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 on the person affirming the existence of one to prove it."'

[73] Van der Walt continues:

'... if the wording of the contract is clear and the intention of the parties can be established unambiguously from it - in such a case, the courts simply give effect to the intention of the parties by attaching the normal grammatical meaning to the words of the contract. When the servitude grant is clear the starting point, the default position, is the contract and not the presumption [in common law that the ownership of land is presumed to be free of servitudes unless the opposite is proven]. In Le Roux NO en Ander v Burger en Ander[44] the court describes this as "the golden rule": if the wording of the contract is clear the grammatical meaning of the contract must be followed.’ [45]

[74] Praedial servitudes are limited real rights in the property of another person. Therefore, registration is a validity requirement for the creation of such servitudes.[46] Prior to or in the absence of registration, there is no valid servitude, merely a personal right that is valid only between the parties to the agreement in which it is embodied. The content of the contractual agreement usually includes the right to force the grantor to co-operate in registration of the use right, and may or may not be couched in identical language to the servitude, provided that the servitude reflects the true intention of the parties.[47]

[75] As praedial servitudes are interests in land and constitute a subtraction from the dominium in land, the Alienation of Land Act 68 of 1981 requires that any agreement granting such a right must be in writing and signed by both parties to be valid. In addition to the

formal written requirement, the servitude has to be registered. The duty to register servitudes derives from s 16 of the Deeds Registries Act, which prescribes that 'other real rights in land may be conveyed from one person to another only by means of a deed of cession attested by a notary public and registered by the registrar'.

[76] Section 3(1)(oJ of the Deeds Registries Act provides that the Registrar of Deeds shall 'register any servitude, whether personal or praedial. . . .' Sections 75 and 76 and reg 73(2) of the Deeds Registries Act provide for the creation and registration of praedial servitudes. Registration is a validity requirement: compliance with the formal process is required before a valid and enforceable servitude in land created by contract comes into being.[48] In terms of s 63 of the Deeds Registries Act, a servitude containing a positive obligation for the owner of the servient tenement may be registered when the owner is contractually bound to perform the positive obligation.[49]

[77] The owner of the servient land may exercise all powers of ownership not inconsistent with the servitude. According to Van der Walt, '[t]he holder of the servitude acquires all the entitlements that are reasonably necessary for the proper utilisation of the servitude,

plus any further entitlements that are clearly included in the servitude grant, but the exercise of these entitlements is restricted

to the least burdensome interpretation that is reasonably possible in the context'.[50] Therefore, the reciprocal obligation on the owner of the dominant tenement is that the servitude must be exercised civiliter modo. What this means is 'that the holder of the servitude may not increase the burden on the servient land beyond the express or implied terms of the servitude'.[51] In Brink v Van Niekerk en 'n ander,[52] Van Zyl J described civiliter modo to mean that the servitude holder should not act in an uncivilised, inconsiderate or burdensome manner with respect to the property and should display the care and consideration of a bonus paterfamilias. His conduct should not found allegations of damage or inconvenience.

The onus on the Plaintiff

[78] Where rights of servitude are claimed, the usual form of action is for a declaration of rights and for relief in the shape of a prohibitory or mandatory interdict. When a declaratory order is sought, Plaintiff's declaration should state clearly what rights to which he claims to be entitled have been infringed by the defendant. In the prayer or claim which concludes his declaration he should set out those rights to which he wishes the court to declare him to be entitled....'[53] A plea for a declaratory order may be coupled with an order for damages.[54]

[79] To succeed with its prayer for a declaratory order in respect of a servitude, the Plaintiff must prove:

'(a) an actual, existing or future right or obligation with regard to property; (b) an existing and real dispute about that right or obligation; and (c) convincing reason why the court should exercise its discretion in the circumstances to settle the dispute by granting a declaratory order that sets out the parties' respective rights and obligations.’[55] (Footnote omitted).

Discussion and evaluation

The obligation to provide parking: from lease to sale

[80] The aforegoing summary of undisputed facts sustains the submissions by Mr Pillemer SC, who appeared with Mr Boulle for the Plaintiff, that the Plaintiff's property has since 1971 been entitled to parking on the First Defendant's property, initially by lease, then cession of the lease, and then condition of sale, and that in order to preserve the right to 250 parking bays, the praedial servitude was registered when the servient property was sold to the First Defendant.

[81] The correspondence between the Second Defendant and the First Third Party, as set out in the summary, also sustains Mr Pillemers submission that the Second Defendant received advice to the effect that the servitude would protect the right to parking and acted upon it. It also reflects the decision and the proposed clause in the sale agreement to create the servitude. The wording of the clause in the sale agreement varies slightly from the wording of the servitude as registered, but does not render the servitude invalid or inconsistent with the intention of the parties.[56] Mr Pillemer further properly pointed out that the Second Defendant was committed in terms of a long lease with Skating Enterprises to provide this parking for at least 25 years. Therefore, the condition that the purchaser, the First Defendant, had to continue making the parking facilities available was recorded in the sale agreement, and servitude registered to ensure that the First Defendant's successor-in-title would also be bound to provide the parking. Consequently, clause 15.2 in the agreement of sale mirrored the advice given and the clear intention of the parties was to create a praedial servitude.

[82] Mr Pillemer's submissions are also supported by the minutes and resolutions of the various meetings of the Second Defendant as set out in Mr Clarke's report, in which the reservation of 250 parking bays on the First Defendant's property for the benefit of the Plaintiff's property was consistently approved and carried forward in the Town Planning Scheme (TPS) for Special Zone 10. Counsel for the Second Defendant, Mr Gajoo SC and Mr Goddard SC, properly pointed out that Mr Clarke's evidence, which established that the wording in the TPS and Special Zone 10 remained unchanged

from 1973 was not challenged, and his evidence that the section (the Special Zone) was duly promulgated and remains in force was also not seriously challenged. In any event, there is no evidence to the contrary.

[83] Mr Ramiah testified that the Developer's Brief stated that the parking was available for the users of the Plaintiff's property. The two tripartite agreements concluded by the Plaintiff, Second Defendant and Skating Enterprises protected the rights of the users of the ice rink and their access to the parking on the First Defendant's property. The Second Defendant could not have given such undertakings without the registration of the servitude. Once the Second Defendant transferred ownership of the First Defendant's

property, the right to parking on that property by the Plaintiff and its patrons could only be protected by the registration of the servitude.

[84] It is also relevant that when the sale agreement was concluded between the First and Second Defendants on 28 July 1994, the sole shareholder of the First Defendant was Scott & Scott. No shares had yet been sold or transferred under the Share Blocks Control Act. The First Defendant and its directors at the time also had the benefit of legal advice from the attorneys who represented them, and raised no objection to the provision of 250 parking bays to be registered as a term of the servitude at any time. The mortgagee, NBS Ltd, which provided the finance for the development of the First Defendant's property, was also apprised of and consented to the registering of the servitude. Therefore, the transfer of the property to the First Defendant was registered with the knowledge of all the interested parties that the property was subject to a servitude which was set out in the sale agreement, and which would be registered as soon as the CRT for the Plaintiff's property was available. The contract of sale in which the obligation to create the servitude is unassailable and undisputed. This Court must give effect to the intention of the parties by

attaching the normal grammatical meaning to the words of the contract. [57] Therefore, the default position in this matter is the contract as set out in para72 and [73]supra, and not the presumption against the servitude.

The legal consequence of a valid sale agreement vis a vis the servitude

[85] The First Defendant does not impugn the sale agreement between the First and Second Defendants. However, it disputes the validity of the servitude, which was registered in compliance with the contractual obligation created in the sale agreement. Only an owner of an immovable property is able to grant a servitude over it.[58] The developers and directors of the First Defendant were the Second to Sixth Third Parties at all material times when the purchase of the First Defendant's property was negotiated and finalised, and the Second Third Party was properly authorised to sign the sale agreement and transfer documents. By its signature to the sale agreement, the First Defendant bound itself to grant and register the servitude as owner of the servient property. Therefore, the registration of the servitude could only be effected simultaneously or after registration of transfer of ownership to the First Defendant.

[86] The agreement to grant the servitude was binding upon the contracting parties, although it did not vest the legal title to the servitude in the party in favour of whose land it is agreed that the servitude be given.[59] In Servitudes, Hall writes:

'Where an owner of a tenement has agreed to grant the owner of an adjoining property a servitude the latter merely acquires a personal right. In order to create a real right of servitude a quasi traditio is required (Voet, 8.6.1). This tradition or conveyance is effected by the registration in the deeds office of the servitude agreed upon against the title deeds of the owner of the tenement granting the servitude The effect of the registration of the servitude upon the title deeds of the servient tenement constitutes notice of the existence of a real right to all the world '[60]

[87] As properly submitted by counsel for the First Third Party, Mr Mullins SC who appeared with Mr Wallis, the Plaintiff had an entitlement to compel the First Defendant to 'cooperate in procuring registration of the servitude, as this is a requirement for the creation of the real right that [the parties have] bargained for'.[61] A praedial servitude that is not registered is binding on the owner of the servient tenement if he has knowledge and the servient tenement is bound to co-operate in having the servitude registered.[62] Consequently, although the servitude was not registered simultaneously with the transfer, the First Defendant could not resile from its obligation to register the servitude when ownership of the property passed to it, as it was the clear intention of the

parties to the sale to create a praedial servitude in perpetuity, enforceable against the First Defendant and all its successors-in-title.

[88] I interpose to add that I am unable to find any shortcoming in the conduct of any of the parties involved in the transactions by permitting the registration of the transfer of the First Defendant's property to go ahead without the simultaneous registration of the servitude. As stated by Ms Treadway, she was satisfied that the waiver by the Director: Real Estate was sufficient to delay the registration of the servitude, which was confirmed by Mr Breytenbach. Similarly, the bondholder also consented to the delay by signing a waiver and the directors of the First Defendant raised no objection, and signed the necessary documents.[63] The waiver ensured the delay of the registration of the servitude without prejudicing or amending the rights of the parties to the sale and mortgage bond with regard to the servitude. Further, there is no prohibition to the registration of a Notarial Deed of Servitude after the registration of transfer of the property in the Deeds Registries Act, provided that the necessary consents of all interested parties are obtained.[64] It was in any event to the advantage of the First Defendant that the transfer and bond be registered to enable the release of the funds required for the development of its property and the Retirement Scheme.

The special resolution defence

[89] In terms of s 75 of the Deeds Registries Act, the Notarial Deed of Servitude has to be executed by the owners of the dominant and servient tenements. The Second Defendant still owned the dominant tenement at that time and furnished the requisite Special Power of Attorney to the notary public. As set out earlier in this judgment, the draft Deed of Servitude and resolution of directors for the servient tenement which was sent by the conveyancer to Mr Brunton in May 1996, was signed and returned by the Second Third Party. The Notarial Deed of Servitude was executed under the Special Power of Attorney dated 17 July 1996 granted by the Second Third Party, authorised by a resolution dated 17 July 1996 of the directors of the First Defendant, as owner of the servient tenement. The First Defendant denies that it authorised JEGD Da Graca, the person who appeared before the notary public who notarised the Deed of Servitude, to grant the benefit of the servitude.[65]

[90] The bare denial is irrelevant and of no substance as Mr Da Graca was authorised by the Special Power of Attorney signed by the Second

Third Party, which, as recorded on the Notarial Deed, was filed in the Protocol of the notary. Although the original resolution of directors referred to in the Special Power of Attorney has not been located, the Second to Sixth Third Parties were the directors of the First Defendant at 17 July 1996, as they only resigned on 15 November 1996.[66] Further, if the share block company authorised the sale, its board of directors were authorised to do what was necessary to comply with the obligations arising from the sale.

[91] The First Defendant contends that once registration of transfer was passed to the First Defendant, the Share Block owners/shareholders had to agree to the registration of the servitude as it diminished ownership, and such an act required a special resolution of members in terms of s 8(1)(c) of the Share Blocks Control Act[67] and s 4B of the HDSRP Act.[68]

[92] Mr Pillemer argued in response to such contention that no such resolution was necessary, and that the registration of a servitude like the one in question is not hit by the prohibitions relied on by the First Defendant. As clause 15 of the sale agreement created an unregistered servitude and the contractual obligation required the servitude to be registered, the agreement to register a servitude had been authorised. Therefore, doing what was necessary to give effect to the authorised servitude must similarly have been authorised, and did not amount to an alienation of land that required a special resolution under s 8(1)(c) of the Share Blocks Control Act or s 48 of the HDSRP Act. I find merit in his submission and the authority relied upon.

[93] Mr Pil/emeradvanced as authority and settled law on how the doctrine of notice operates in the case of unregistered servitudes, the explanation by Brand JA in Bowring NO v Vrededorp Properties CC:[69]

'[7] I will first deal with its application in relation to unregistered servitudes, which has by now become settled law. In this instance the doctrine operates in the following way: if A and B enter into an agreement which entitles A to have a servitude registered over the land of B, A has a personal right to claim that B should cooperate in procuring registration of the servitude, as this is a requirement for the creation of the real right that A has bargained for. Once registration has taken place any subsequent purchaser of the land will be bound by the servitude.

[8] If, however, B should sell his land and transfer ownership to C before registration has occurred, C would normally not be bound to give effect to the servitude. But, if C had knowledge of A's unregistered servitude at the time the contract of sale was entered into between B and C, C will be bound, not only to give effect to the servitude, but also to cooperate in having the servitude registered '

[94] Mr Pilfemer, correctly in my view, submitted that the First Defendant as the contracting party who had in fact agreed to the servitude was similarly compelled to register the servitude. He submitted that it was clear that there was a right, which may not be enforceable against an innocent purchaser who has no knowledge of it, but can be enforced if a subsequent purchaser does have knowledge, and can be enforced against the original purchaser. I am satisfied that the First Defendant cannot rely on its status as a share block company and compliance required with the provisions of the Share Blocks Control Act to avoid its contractual obligation to give effect to the unregistered servitude and to co-operate in the registration of the servitude that was agreed in the sale agreement. It could have been compelled to comply with its obligation in law to convert the personal right into a real right by the registration of the servitude, had there been no Special Power of Attorney executed on behalf of the servient tenement.

[95] The special resolution requirement under s 48 of the HDSRP Act is not applicable because the registration of the servitude does not impact on a right of occupation under the Act. It prohibits alienation of land intended to be used for residential purposes and not parking areas. It is evident that the parking bays were not included in 'the right of a purchaser of a housing interest' because the parking bays were let or sold separately to residents on the First Defendant's property, as testified by Ms Shilton. I am unable to agree with Mr Kemp that this interpretation adversely affects the rights of the vulnerable persons. The freehold rights in favour of the First Defendant were registered and the title deeds were endorsed as subject to a Retired Persons Scheme under the HDSRP Act on 7 December 1994. The First Defendant was already registered under the HDSRP Act when it entered into the sale agreement and agreed to the obligation

to register the parking servitude.

[96] Consequently, there is no merit in the special resolution defence raised by the First Defendant. The First Defendant was obliged to ensure that the development of its Scheme and in particular, the parking area on its property, would enable the fulfilment of its obligations to its residents and the dominant tenement. The directors of the First Defendant who replaced the first directors in November 1996, and shareholders, were aware of the servitude in 1996, as evidenced in the minutes of the meetings, and confirmed by Ms Shilton. Nevertheless, they did not challenge the validity of the servitude or dispute that they could provide the number of parking bays the servitude demanded before 2004. Instead, the First Defendant took advantage of the fact that the Plaintiff did not exercise its right to access the parking and sold or let the bays to their financial benefit.

[97] It was only after the Plaintiff submitted its offer to purchase in September 2003 and the First Defendant became aware that the new owner would want to exercise its right of access to the parking that the First Defendant approached the Second Defendant to cancel the parking servitude in September 2004, which request was refused. After Mr Ramiah assessed the parking on 18 April 2005, the First Defendant again approached the Second Defendant, this time requesting a reduction in the parking bays allocated to the Plaintiff. Implicit in the request for the cancellation and the reduction in allocation, was an acknowledgment by the First Defendant that the servitude was valid and binding on it.

The registration and terms of the servitude

[98] Mr Kemp submitted in his heads of argument that the sale agreement clearly contemplated that the agreement of the share block company would be obtained because the servitude required clauses not in relation only to the parking but also:

'... regarding issues such as the position when the bays were not used under the servitude, which bays were covered; what the servitude area was comprised of, etc. and termination and payment. The lease indeed required such aspects to be the subject of decision by the City Engineer and an arrangement required between the two lessees.'

[99] I find no merit in that argument. The servitude as proposed and included in the sale agreement was clearly a praedial servitude in perpetuity, and the payment was to be fixed as set out in subclause (c). The servitude was expressed in general terms, and as the parking area was already demarcated, the parties would have to agree on the allocation of the bays in due course. As stated in Jones Conveyancing in South Africa:

'Irrespective of the method of registration a praedial servitude... unless expressed in general terms must be reflected on a diagram already registered or on a new subdivisional diagram being registered simultaneously or on a separate diagram being registered

simultaneously (reg 73(2))... when parties agree on the type and nature of the servitude to be registered but leave its exact location

to be agreed upon at a later date the servitude is in general terms and no diagram is necessary.’[70]

[100] This appears to be an appropriate point at which to dispose of three related issues: the need for a diagram, the lack of "definiteness",

and the practical implementation of the servitude. Mr Kemp submitted that clause 15 of the sale agreement for the First Defendant's property contemplated a diagram as part of the Deed of Servitude to be agreed. I am unable to understand the relevance of the further submission that the purchaser was unaware of the failure to survey the ice rink property. It has been correctly pointed out by Mr Pillemer that there was no need for the diagram as the servitude is a general servitude. Both the First Third Party and Attorneys Ngwenya Zwane confirmed that no diagram was required because the servitude was registered in general terms.

[101] The relevant portion of reg 73(2) as at the date of registration of the servitude[71] reads as follows:

'A diagram shall also be annexed to. . .deeds creating or defining servitudes and real rights whether created or defined by the parties... Provided further that nothing in this subregulation shall exclude the registration of a servitude in general terms.'

[102] As already set out above; the author of Conveyancing in South Africa confirms that no diagram is necessary for a servitude registered in general terms. The parties agreed the type and nature of the servitude: a praedial servitude of 250 parking bays in perpetuity. The exact location of the servitude, that is the allocation of parking bays, was to be agreed upon at a later date. This flexibility makes practical sense as the First Defendant and the Plaintiff would be in a better position once the Retirement Scheme was developed, to determine which bays on the three levels of parking would better suit the residents of the retirement home and which bays would enable the Plaintiff to exercise its access to the parking

civiliter modo.

[103] As stated earlier in this judgement, the civiliter principle holds that the servitude holder must exercise the servitude entitlements reasonably and with due regard for the interests of the servient owner. In fact, the Plaintiff made a written proposal to exercise its parking rights civiliter modo.[72] Therefore, the practical implementation of the servitude is facilitated rather than impeded by its general terms and 'lack of definiteness'.

[104] Mr Gajoo pointed out that according to Mr Clarke's evidence, the lay out of the parking bays suggests that the Plaintiff should have access to the parking bays on the upper and ground levels, which could be exercised without impeding or disturbing the use of the basement bays by the residents of the First Defendant. Mr Pillemer similarly submitted that the servitude allows the servient tenement to identify the area ie the 250 bays and the access route to allow them to be used, and that in the parkade consisting of three floors;

originally the top and ground floor had the parking for the 250 cars and the basement for the hotel. This arrangement also facilitates the exercise of the servitude civiliter modo.

[105] I am fortified in my conclusion that the lack of a diagram in no way rendered the servitude invalid, by the description of what a general servitude is and its effect by the Constitutional Court in Tshwane City v Link Africa:[73]

'[142] ... a general servitude... allow[s] the dominant owner to select the essential incidental rights of the necessary premises and to take access to them as needed for the exercise of the servitude. But the right is not unrestricted. The dominant servitude-holder cannot just barge in. . .exercise of a servitude is subject to the important condition that incidental rights must be "exercised civiliter''.

[150]... the following general principles apply to our common law of servitudes:

(a) …

(b) The holder of the right of a general servitude may select the essential incidental rights to exercise the servitude, like the premises needed and the access thereto. This selection must be exercised in a civil or reasonable manner (civiliter). Disputes about this choice must also be determined in court if no agreement between the parties can be reached.

(c) Where changed circumstances require it, the common law of servitudes must be adapted to arrive at a solution that is just to the parties and does not prejudice them. In the case of enforced servitudes this must be done in a manner that least inconveniences the servient owner.' (Footnote omitted).

[106] .. Furthermore, the insistence of the First Defendant for the need of a survey diagram for the servitude to be valid is made without recourse to the nature and true purpose of a diagram in respect of a servitude. Hall writes that '[t]he marking of a servitude on the diagram of the property is not of itself sufficient to bind the owner of the land to give effect to the servitude, because the diagram is intended to indicate the topographical features of the land and not to record rights affecting the property'.[74]

[107] This being a parking servitude, the topographical features of the First Defendant's property are clearly irrelevant, which underscores why no diagram was required for the registration of the servitude. Nor am I persuaded that the rectification sought by the Second Defendant in its conditional counterclaim demonstrates the illegality of the registration in general terms as submitted by Mr Kemp.

[108] On the issue of payment, although Mr Ramiah was cross-examined as to why there was no tender for the costs of the parking, it is evident that the First Defendant did not at any stage discuss the costs of the parking with the Plaintiff. As it refused to acknowledge that the Plaintiff was entitled to access to the parking, it could not broach the issue of charges, provision for which, as correctly pointed out by Mr Ramiah, was made in the servitude. Had the Plaintiff been allowed access to the parking bays in terms of the servitude, as a necessary consequence, the payment would have been fixed in accordance with the terms of the servitude too.

[109] The servitude provides that 'the Grantor may charge a tariff for the use of the servitude area comprising the parking area which may not be more than the average amounts charged for a similar period of time for parking, by parking garages in the vicinity of the servient tenement'.[75] An ordinary, grammatical reading of the provision within the context of its creation and implementation indicates that the First Defendant must first elect to exercise its option to charge for the parking, and then it must fix a tariff in accordance with the charges by parking garages in the vicinity of its property, and thereafter advise the Plaintiff accordingly. I am in agreement with Mr Pillemer, it is not for the Plaintiff to make a tender of the tariff, although it has indicated its willingness to pay for the parking. There is therefore no merit in the submissions by and on behalf of the First Defendant, that the servitude is uncertain in its provision for payment or that the Plaintiff has failed to tender payment for the exercise of its rights under the servitude.

[110] I am consequently not persuaded that that the registration of the servitude in general terms is unlawful, or that the Registrar of Deeds erred in allowing such registration without a survey diagram, or that the terms in the Notarial Deed of Servitude are inadequate to describe the rights and obligations under the deed. The servitude is unassailable in all these respects.

[111] Mr Kemp also argued that the First Defendant was entitled to dispute the validity of the servitude because it had never been enforced or even asserted since registration. Further the Plaintiff had bought its property with knowledge of the challenge and had one and a half years to consider the challenge, but made no effort to interact with the First Defendant from 2005 when first apprised of the dispute. This argument is ill-conceived. Whether the servitude was enforced or asserted since registration is irrelevant and immaterial - the servitude is a perpetual servitude, whether enforced or not, and there cannot be a tacit relinquishment of the parking bays, as suggested by the First Defendant.[76]

[112] The Plaintiff was assured that the servitude was valid by its attorneys and the Second Defendant. On the other hand, it was

stonewalled by the First Defendant, which demanded, quite unscrupulously in my view, that the Plaintiff admit that the servitude was invalid in return for access to the parking. The First Defendant at the same time approached the Second Defendant to cancel

the servitude and then reduce the allotted parking. It is the conduct of the First Defendant that is reprehensible and should be called into question.

[113] The First Defendant also pleaded that the servitude does not offer permanent advantage or benefit to the Plaintiff's property. In my view, it is indisputable that the servitude satisfies the utility requirement in that it enhanced the use and intended development of the Plaintiff's property, and added economic value to it. Mr Ramiah's undisputed testimony about the development of a world class ice rink and conference facilities on the Plaintiff's property and the challenges posed by the lack of parking facilities sustain this view.

Is the servitude in conflict with the regulations in the TPS and HDSRP Act?

[114] Mr Kemp contended that the servitude sought to record and convey rights, the exercise of which would be in conflict with the TPS and ss 7 and 4A of the HDSRP Act. The TPS Regulations for parking require the First Defendant to provide a minimum of 135 parking bays

for its own residents. As there were only 311 parking bays available on the First Defendant's property, the provision of parking for 250 cars to the Plaintiff in compliance with the servitude, would have placed the First Defendant in breach of the TPS.

[115] Mr Pillemer submitted that the common law on servitudes must, as far as reasonably possible be read in harmony with the regulations in the TPS, which is possible because the same concept is covered by both. He submitted further that the evidence resolved the factual question as to whether there is sufficient parking available on the First Defendant's property in terms of the regulations of the TPS viz

92 bays, if 250 bays are subject to the servitude, and that the plans reveal that there is sufficient parking.

[116] I have already held that the evidence of Mr Clarke established that Special Zone 10 requires the First Defendant to provide 250 parking bays for the Plaintiff. Counsel for the Second Defendant properly submitted that a TPS has the force of law and the First Defendant must comply with the TPS Regulations. In eThekwini Municipality v Tsogo Sun KwaZulu-Natal (Pty) Ltd[77] it was stated as follows:

'The appellant's scheme-in-preparation has the force of law; a local authority is under a duty to observe and enforce its scheme; failure to comply with its terms is a criminal offence; the scheme clauses which regulate a particular zoning are incorporated in the scheme and become likewise enforceable.' (Footnotes omitted).

[117] Similarly, the SCA stated in JDJ Properties CC & another v Umgeni Local Municipality & another[78]:

'Section 6(1) of the KwaZulu-Natal Planning and Development Act 6 of 2008 states that a town-planning scheme "is binding on the municipality, all other persons and organs of state, except in the event of a conflict with the provisions of an integrated development plan that was adopted prior to the scheme or amendment to the scheme". This is reinforced by s 56(1) of the Town Planning Ordinance which says that when an approved scheme comes into force "the responsible authority shall observe and enforce the observance of all the provisions of the scheme". Section 77 makes it a criminal offence to fail to comply with a notice directing compliance with a scheme. This means that the provisions of a scheme fall within the term "any other applicable law" ins 7(1)(a).' (Footnote omitted).

[118] Mr Mullins contended that the First Defendant's allegation that when the servitude was registered, it provided for an illegality because, there were insufficient parking bays on Lot 11496 to accommodate the 250 cars and the number of parking bays required by the TPS for the retired persons' home, was incorrect. He submitted that an analysis of the available building plans submitted to the Second Defendant from 1972 reveals that the original physical structure which allowed for a minimum of 384 parking bays remained largely unaltered when the First Defendant acquired the property. His submission is supported by Mr Clarke's application history compiled

from the Town Planning register. Mr Ramiah testified that according to the plans from the eThekwini Development and Planning Unit there should have been at least 324 bays but he counted 263 bays because of various alterations effected on the parking area.

[119] Mr Mullins provided a useful summary of the inspection in loco before the trial and a comparison of the original plans for the hotel reflecting the actual construction and the plans submitted by the First Defendant in 2006, which reveals the extent of the alterations to the original plans. In the original construction a minimum of 130 bays were provided on the upper floor. Apart from the location of gas cylinders in part of one parking bay, the First Defendant erected a lean-to roof beneath it, which no longer provides for parking and the parking layout has been reconfigured, thereby reducing the demarcated parking bays.

[120] On the ground floor or lower deck which provided 120 undercover parking bays, the First Defendant erected drywall partitioning to create a laundry in the parking area (which appears to affect more than the one bay which was to be used according to the 2006 plan), and designated an unnumbered parking bay as "visitors parking". The First Defendant uses bays under the ramp leading up to the upper deck as a fenced store. A further one (or two) parking bays appear to have been lost as a result of the installation of a sliding security gate. The basement originally had 121 parking bays. The First Defendant's plans approved in 2006 provided for the conversion of large sections of the basement parking into offices and other space of which there is evidence in 2005, but which have been since removed. While various areas were fenced off and used for storage and possibly other commercial purposes, the physical area allowing for the original 121 parking bays is still available to be used as such.

[121] I am in agreement with Mr Mullins that when the First Defendant contended that there were fewer parking bays than required by referring to the original memorandum of association which identified 315 parking share blocks, the number of parking share blocks created was a matter of the First Defendant's own choice. It does not reflect the physical parking spaces actually available. The First Defendant has not been consistent, and therefore not frank and honest in my view, in its responses in respect of the number of parking bays on its property. In its answering affidavit in the application deposed to on 13 March 2010, the First Defendant stated that that there were 79 bays in the basement, 110 bays on the ground floor and 122 bays on the first floor, making a total of 311 bays.[79] About 20 of the bays are set aside for staff, and about 110 parking bays are owned or leased by residents.[80]

[122] In its Rule 37(4) Exposition, the First Defendant confirmed that the retired persons' home was completed with approximately 324 bays on three floors. The current situation ie at 6 November 2017 was 96 bays in the basement, 109 on the ground floor and 124 on the top floor, totaling 329 parking bays. Of the 329 bays, 43 on the ground floor are share block properties, 10-15 are reserved for staff, five for use by contractors, and 204 bays are rented out. Twelve additional bays could be established in the basement by removing storage facilities, which would increase the total number of bays to 341. Ms Shilton confirmed these numbers.

[123] Ms Shilton and Mr Clarke testified that there are 185 rooms (units) in the Retirement Scheme. Mr Clarke calculated that the General 5 Scheme parking requirement for the First Defendant's Scheme is 92 bays. Mr Gajoo pointed out that, together with the additional bay that has been enclosed as a washing facility, there are physically sufficient bays to comply with the TPS in respect of the First Defendant's requirements and the patrons of the Plaintiff's property.

[124] This is consistent with Mr Clarke's testimony that the upper and ground decks of the parking facility on the First Defendant's

property were specifically designed to accommodate its obligations to provide 250 parking bays for use by the Plaintiff's property. The total number of parking spaces on both these levels was and remains equivalent to the obligation which the First Defendant owes to the Plaintiff. Both floors have separate accesses which did and do not lead directly to the residential portion of the building on the property. The basement and the forecourt provide adequate parking for the uses on the First Defendant's property and are directly accessible from the residential section of the building.

[125] Therefore, the remaining challenge by the First Defendant as to whether there are sufficient numbers of bays to comply with the TPS and the servitude is resolved by the evidence. The provision of 250 bays for the Plaintiff in accordance with the TPS is therefore neither unrealistic nor unreasonable, nor does a declaratory order to that effect 'intrude into the home sphere of the Share Block retired members' parking’[81] as contended by Mr Kemp.

Should the declarator be ordered?

[126] I am satisfied that the Plaintiff has discharged its onus to establish that it has an actual, existing right with regard to

property. The servitude is, in my view, valid in respect of content and registration, and entrenches the right of the dominant tenement to access 250 parking bays on the First Defendant's property, and its obligation to pay for the use of such parking bays, should the First Defendant charge for such parking. The servitude provides that should the First Defendant elect to charge for the parking, it must levy a tariff in accordance with the charges by parking garages in the vicinity of its property. Ms Shilton testified that there was only one other parking garage which offered similar undercover parking. Therefore, compliance with this provision of the servitude should not unreasonably burden the First Defendant.

[127] The defences raised by the First Defendant and its failure to permit parking to the users of the Plaintiff's property, establish the existing and real dispute about the right with regard to property. I am also satisfied that Plaintiff has established that there are convincing reasons for this Court to exercise its discretion and settle the dispute by issuing a declaratory order that sets out the parties' respective rights and obligations. It is relevant for the exercise of judicial discretion that there are in total sufficient parking bays to meet town planning requirements and the servitude.

[128] In my view, the conduct of the First Defendant is also a factor relevant to the exercise of the Court's discretion. The First Defendant was aware of the servitude and its obligation to allocate 250 parking bays for the use of the Plaintiff's property and the provisions of the TPS and the HSDRP Act from at least 1998. However, it did nothing to set the servitude aside or challenge its validity in a Court of law, nor could it assume that there was a tacit relinquishment of the servitude through disuse of the parking bays.[82] Nevertheless, the First Defendant dealt with the parking area with scant regard for its obligations under the servitude, reducing the number of parking bays through alterations and storage, letting out bays to non-residents and even advertising the parking bays for sale to the general public in 2005, despite being aware of the Second Defendant's refusal to reduce the allocation under the servitude or to cancel the servitude.

[129] In July 2005, the validity of the servitude was disputed for the first time, but the servitude remained enforceable. In 2006, when the First Defendant sought approval of its plans for the conversion of the hotel to the retirement facility, its declaration annexed to the plan stated: 'I declare that I have personally checked the Title Deeds or any other document for the property concerned and that the proposed work is not contrary to any restrictive conditions or servitudes applicable thereto, and in the event of such contraventions will bear the sole responsibility to rectify aforesaid contraventions.'

[130] Mr Clarke was of the view that the First Defendant had not made disclosure of the servitude, and the approval of the plan without the servitude was null and void. However, in the declaration, the First Defendant represented by its legal representative, does not deny the existence of the servitude. It warrants that the proposed work is not contrary to 'any applicable' servitude. It further undertakes, in the event that such contravention does nevertheless manifest, to accept sole responsibility to rectify the contravention. Therefore, if the work under the plan made it impossible to make 250 parking bays available under the servitude, the First Defendant accepted sole responsibility to rectify the contravention, and ensure that the 250 parking bays were duly made available. There can be no abdication of that responsibility now.

The Plaintiff's claim for Damages against the First Defendant

[131] The Plaintiff alleges that it has suffered damages because of the First Defendant's refusal to make parking facilities for 250 vehicles available on its property for the exclusive use of the Plaintiff's property. Without being able to offer its tenants the parking facilities, its rental income has been lower than the income it would have received had the Plaintiff been able to offer such parking with its rented premises. Therefore, it claims damages calculated as the difference between the current rental income and the projected rental income for the premises with its values enhanced by the parking, and has provided a schedule to support its claim. The claim is therefore one of pure economic loss.

[132] The only evidence in respect of the adverse consequences of the First Respondent's refusal to allow the Plaintiff access to parking was that of Mr Ramiah. He testified about losing prospective users of the property because of the lack of secure and convenient parking, although the conference and meeting facilities the Plaintiff offered was, in this province, second only to the International Convention Centre and the multi-functional ice rink was of Olympic standard and used for ice sports.

[133] An owner of the dominant tenement may claim damages from the party that has interfered with its rights under the servitude if it can satisfy the normal requirements for an action in delict.[83] A delict is defined as:

'. . .the act of a person that in a wrongful and culpable way causes harm to another. All five requirements or elements, ie an act, wrongfulness, fault, causation and harm must be present before the conduct complained of may be classified as a delict.’[84] (Footnotes omitted).

Causation consists of two independent delictual elements i.e. factual causation and legal causation.

[134] The locus standi in iudicio of the Plaintiff to claim damages was established when it became the registered owner of the property with the benefit of the servitude.

The first requirement viz an act, is not in dispute, as it is common cause that the First Defendant has refused to give the Plaintiff

access to the parking, but an act which causes harm to another is in itself insufficient to give rise to delictual liability. The authors of Law of Delict state that '[a]n act may be described as delictually wrongful only when it has as its consequence the infringement of a legally protected interest',[85] which is determined by the relevant facts. For liability to follow, harm must be caused in a wrongful manner. An act is wrongful (unlawful) when it violates the rights of another, or when it is in breach of a legal duty towards another.

[135] As this is a claim for pure economic loss, it is also relevant to note that in Country Cloud Trading CC v MEG, Department of Infrastructure Development,[86] the Constitutional Court held that:

'[22] ... There is no general right not to be caused pure economic loss.

[23] ... Wrongfulness must be positively established. It has thus far been established in limited categories of cases... where the plaintiff can show a right or legally recognised interest that the defendant infringed.

…

[25] . . .the element of causation (particularly legal causation. . .) is. . .a mechanism of control. .. that can work in tandem with wrongfulness.' (Footnotes omitted).

[136] The Constitutional Court therefore endorsed the following statement by Brand JA in the appeal before the SCA[87] between the same parties:

'But in the case of pure economic loss, wrongfulness performs the function of a safety valve, a control measure, a long stop which enables the court to curb liability where despite the presence of all other elements of the Aquilian action, right-minded people will regard the imposition of liability as untenable.'

[137] The wrongfulness inquiry focuses on whether or not the Plaintiffs interest is entitled to protection from the First Defendant's

conduct. The legal causation inquiry, in contrast, focuses on the limitation of loss flowing from the wrongful conduct and is an

inquiry into closeness or remoteness of the particular harm. I shall revert to causation.

[138] The registered servitude is a limited right in property which has given the Plaintiff a right to parking on the First Defendant's

property, which is entitled to protection from the First Defendant's obstructive conduct. The failure to recognise this right would

undermine the nature of property rights as a whole, because registration of title and rights to property is the cornerstone which

underpins the constitutionally entrenched right to property in s 25 of the Constitution of the Republic of South Africa, 1996. The First Defendant's refusal to allow the Plaintiff to access parking on its property is a violation of the Plaintiffs rights under the servitude, and a breach of its own legal duty to provide the parking, which is not in conflict with the requirement that a servitude should not impose a positive obligation.

[139] Fault or culpability is the subjective element of the delict and refers to the legal blameworthiness or the reprehensible state of mind of someone who has acted wrongfully.[88] The two forms of culpability are intention (dolus) and negligence (culpa). For a claim of patrimonial damages to succeed, negligence is sufficient. A person acts intentionally if his will is directed at a result which he causes while conscious of the wrongfulness of his conduct. A person acts negligently if he does not act as a reasonable person in his or her position would act. I have already described the conduct of the First Defendant as reprehensible, an indication that I am of the view that the First Defendant deliberately refused to permit the Plaintiff access to parking on its property while utilising the parking area not just for parking for its residents, but also for generating an income for its own benefit, and therefore had the necessary intent to act wrongfully. However, even if my assessment in this regard is incorrect, there can be little doubt that the conduct of the First Defendant does not meet the authoritative test to relieve it of negligence as set out in Kruger v Coetzee.[89]

[140] In determining negligence, the inquiry is whether the reasonable person in the position of the Defendant would have foreseen the harm to the Plaintiff and taken steps to prevent it. The reasonable foreseeability test does not require that the precise nature or exact extent of loss suffered or the precise manner of harm occurring should reasonably have been foreseen. It is sufficient if the general nature of harm suffered and general manner of it occurring was reasonably foreseeable.

[141] The First Defendant was aware of the development undertaken by the Plaintiff on its property, which would of necessity require the use of the parking bays by the users of the facilities on the Plaintiffs property. It was also aware that there was very limited parking in the vicinity, which is why there was a potential market for the parking bays. Under those circumstances, it would have reasonably foreseen that the lack of parking would deter prospective users of the Plaintiffs property, thereby resulting in patrimonial loss to the Plaintiff. The constraints suffered by the Plaintiff were also drawn to the First Defendant's attention by the Plaintiff as Mr Ramiah met with the directors of the First Defendant to discuss the parking prior to the registration of transfer, and through subsequent correspondence. However, the First Defendant refused to permit any parking, unless the Plaintiff renounced its rights under the servitude.

[142] Causation or the existence of a causal nexus between the First Defendant's conduct and the detrimental consequences sustained by the Plaintiff demands a consideration of whether any factual relation exists between the First Defendant's conduct and the harm suffered by the Plaintiff, and whether the First Defendant should be legally held responsible for the consequences factually induced by its conduct.[90] Lawsa states:

'A plaintiff needs "only to establish that the wrongful conduct was probably a cause of loss, which calls for a sensible retrospective analysis of what would probably have occurred, based upon the evidence and what can be expected to occur in the ordinary course of human affairs rather than an exercise in metaphysics".’[91] (Footnote omitted).

I am satisfied that on a balance of probabilities, the Plaintiff has established factual causation viz that it suffered economic loss through diminished rentals because of the withheld access to parking.

[143] Mr Kemp took issue with the reason advanced by Mr Ramiah for delaying the claim for damages, arguing that it would not have been hard to formulate a claim for the economic loss allegedly suffered or to calculate the quantum of the monetary claim, 'given that the diminished rentals involved, related to the corporates associated with Olive and Ramiah, the directing mind of the Plaintiff'.[92] It would therefore appear that Mr Ramiah's uncontradicted evidence on this issue is reliable, and it should also be accepted that the Plaintiff suffered harm viz economic loss suffered through such diminished rental.

[144] Legal causation is determined by the inquiry 'whether the wrongful act is linked sufficiently closely or directly to the loss for legal liability to ensue or whether, as it is said, the loss is too remote'.[93] In my view, it is apparent that the problem caused by lack of parking as a result of the First Defendant's refusal to comply with the servitude, would have had a direct adverse impact on the rental that the Plaintiff could charge. I have, earlier in this judgment mentioned, the utility requirement of the servitude, and that the servitude was intended to enhance the current usefulness and future development of the dominant land. The Plaintiff was deprived by the First Defendant of the benefit of the parking, which would have enhanced the value of the facilities in its convention centre, and consequently, commanded a higher rental. The loss suffered by the Plaintiff is therefore not too remote.

[145] In the premises I am satisfied that the First Defendant is liable in delict for the loss of diminished rental claimed by the Plaintiff.

Prescription of the Plaintiff's claim

[146] The Plaintiff did not seek damages from the First Defendant until it delivered a notice of amendment to its declaration, which was served on the First Defendant on 17 April 2013. The Plaintiff seeks damages calculated from March 2010. The First Defendant has pleaded prescription of all damages allegedly sustained more than three years prior to 17 April 2013, when the cause of action for the damages claim was introduced. Mr Pillemer submitted that prescription of the claims that are three years prior to the amended declaration, has been interrupted by the service of the application papers and then by service of the declaration.

[147] It is common cause that the Plaintiff's claim for damages is for payment of a 'debt' contemplated in Chapter 3, s 11(d) of the Prescription Act and is a continuing claim. Section 12 of the Act provides:

'12 When prescription begins to run

(1) Subject to the provisions of subsections (2), (3) and (4), prescription shall commence to run as soon as the debt is due.

(3) A debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises: Provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care.'

[148] In Minister of Finance & others v Gore NO[94] the Court held:

'This Court has in a series of decisions emphasised that time begins to run against the creditor when it has the minimum facts that are necessary to institute action. The running of prescription in not postponed until a creditor becomes aware of the full extent of its legal rights, nor until the creditor has evidence that would enable it to prove a case "comfortably".' (Footnotes omitted).

[149] In Truter & another v Deysel[95] the Court held that under s 12 of the Prescription Act, prescription of a debt began running when the debt became due and a debt became due when the creditor acquired a complete cause of action for the recovery of the debt or when the entire set of facts upon which he relied to prove his claim was in place. In Umgeni Water & others v Mshengu,[96] the Court similarly held that:

'The words "debt is due" must be given their ordinary meaning. In its ordinary meaning a debt is due when it is immediately claimable by the creditor and, as its correlative, it is immediately payable by the debtor. In other words, the debt must be one in respect of which the debtor is under an obligation to pay immediately.'

[150] In Trinity Asset Management (Pty) Ltd v Grindstone Investments 132 (Pty) Ltd,[97] the Constitutional Court again confirmed that:

'A debt is due when it is immediately claimable by the creditor and immediately payable by the debtor. In Truter the SCA held that, for the purpose of prescription, a debt is due when the creditor acquires a complete cause of action to approach a court to recover the debt.' (Footnote omitted).

[151] Therefore, prescription cannot begin to run against a creditor before his cause of action is fully accrued ie before he is able to pursue his claim. Although the Plaintiff took occupation of the dominant tenement in December 2008, ownership in the property only vested in the Plaintiff upon registration of transfer on 21 September 2009. From that date, the Plaintiff as owner of the dominant tenement was entitled to assert its rights to the parking on the First Defendant's property under the servitude.

[152] However, although it commenced the motion proceedings on 2 March 2010, the Plaintiff did not claim damages until it filed its notice to amend its declaration. Section 15 of the Prescription Act provides:

'15 Judicial interruption of prescription

(1) The running of prescription shall, subject to the provisions of subsection (2), be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt.

(6) For the purposes of this section, "process" includes a petition, a notice of motion, a rule nisi, a pleading in reconvention, a third party notice referred to in any rule of court, and any document whereby legal proceedings are commenced.'

Therefore the 'debt' was only claimed by the Plaintiff on 17 April 2013, which interrupted the running of prescription.

[153] In Makate v Vodacom Ltd,[98] the Constitutional Court stated:

'In the case of a continuing wrong there can be no question of prescription, even though the wrong arises from a single act long in the past. The reason, which may appear somewhat artificial, but which is well established, is said to be that while the original wrongful act may have occurred in a time past, the wrong itself continues for so long as it is not abated. But the running of prescription in respect of any financial claim arising from the same wrong will not be postponed. Accordingly, if financial loss was occasioned by the original wrongful act, the debt in relation to that loss would become due and prescription would commence to run when the original wrongful act occurred and loss was suffered. The result is that the impact of prescription on claims having their source in the same right may differ, depending on the nature of the claim.' (Footnotes omitted).

[154] Consequently, any damages sustained by the Plaintiff, more than three years prior to 17 April 2013, have prescribed.

Costs

[155] The Plaintiff has been successful in respect of its claim against the First Defendant, and is entitled to recover from the First Defendant, the costs of the action, including reserved costs. The Second Defendant was joined to the action as an interested party by the Court. The Plaintiffs damages claim against the Second Defendant was conditional upon the Court finding that the servitude was not valid, as absent a finding that the servitude is invalid, there is no dispute and no lis between the Plaintiff and the Second Defendant. The Plaintiff decided that it made practical sense not to wait the outcome of the trial as to the validity of the servitude before instituting action for damages against the Second Defendant and instead to plead the damages claim in the alternative. As the Plaintiffs claim for damages falls to be dismissed, it must bear the costs of the Second Defendant in defending the claim. The Second Defendant's conditional counterclaim falls away and does not warrant an order for costs.

[156] The Second Defendant's claims against the First and Second Third parties fall to be dismissed. The Court has a wide discretion with regard to the costs of Third Parties. The Second Defendant alleges that it reasonably joined the Third Parties to the litigation because the validity of the servitude is the main cause of this litigation, and the Plaintiff, alternatively, the First Defendant, should be ordered to pay the costs of the First and Second Third Parties. However, by joining the First and Second Third Parties, the Second Defendant sought indemnification against a successful damages claim by the Plaintiff or any adverse costs orders, thereby protecting its self-interest. There is no cogent reason why the Second Defendant should not bear the costs of joining the First and Second Third Parties to the litigation, but a punitive costs order is not warranted, as sought by the Second Third Party.

[157] The Second Defendant joined the First Defendant as Seventh Third Party because it sought rectification of the terms of the servitude in the contract and registered Notarial Deed in the event that the servitude was declared to be inadequately drafted to constitute a servitude in general terms or irregularly registered. This was consequent to the defence raised by the First Defendant that the servitude was deficient in specific terms and ought not to have been registered by the Registrar of Deeds. The First Defendant's defences in this regard have been proved baseless in law. In the premises, I am of the view that the First Defendant/ Seventh Third Party and Second Defendant should each bear its own costs of the Second Defendant's Third Party proceedings against First Defendant.

[158] All parties, save the Second Third Party employed the services of senior counsel. Given the nature and significance of the matter for all the parties, I am satisfied that briefing of senior counsel was warranted and that the costs of senior counsel and two counsel where so employed should be ordered.

Order

[159] The following order is issued:

APPEARANCES

Date of hearing : 13 -23 November 2017

Date of judgment : 21 September 2020

For Plaintiff : M Pillemer SC with A J Boulle

Instructed by : EVERSHEDS SUTHERLAND (KZN) INC

3B & 5B The Ridge

8 Torsvale Crescent

La Lucia

Tel: 031 - 940 0501

Fax: 086 510 2170

Ref: D Avenant/nn/MAT5174

Email: donovanavenant@eversheds-sutherland .co.za

For First Defendant /Seventh

Third Party : KJ Kemp SC

Instructed by : LIVINGSTON LEANDY INC.

: 4th Floor, Mercury House

320 Anton Lembede Street

Durban

Tel: 031 - 536 7500

Fax: 031 - 566 2470

Ref: KN/MP/1 IAI 74002

Email: knaidoo@livingston.co.za

For Second Defendant : V I Gajoo SC with GD Goddard SC

Instructed by : BERKOWITZ COHEN WARTSKI

: 18th Floor, Southern Life House

788 Field Street

Tel: 031 - 314 9300

Fax: 031 - 314 9301

Ref: E Sibiya/ad/52E336129

Email: cmunisahr@berklaw .co.za

For First Third Party : SR Mullins SC with PJ Wallis

Instructed by : GILDENHUYS MALATJIE INC.

Tel: 012-428 8600

Fax: 012 -428 8753

Email: wcelliers@gminc.co.za

c/o: SHEPSTONE & WYLIE

24 Richefond Circle

Ridgeside Office park

Umhlanga Rocks

Tel: 031 - 575 7000

Fax: 031 - 575 7040

Ref: NPW/JvK

Email: woodroffe@wylie.co.za

For Second to Fifth

Third Parties: : Mr V O'Connell

Instructed by : V O'CONNELL INCORPORATED

: No. 10, 5th Floor, The Spinnaker

180 Mahatma Gandhi Road

Tel: 031 - 368 9960

Ref: V O'Connell/

Email: vernon@vocinc.co.za

[1] Previously described as Lot 11444 and prior to that Lot 26, Block Snell Townlands of Durban.

[2] Index to Application Vol 1 page 28.

[3] Exhibit "D" dated 19 April 2010.

[4] The Plaintiff no longer seeks the installation of an electronic system at the entrances and exits (per prayer 3).

[5] D M Schou, the Sixth Third Party could not be located for service of the Third Party Notice.

[6] Core Bundle Part 1 pages 360-361, letter dated 5 November 2009.

[7] Core Bundle Part 1 pages 75-84

[8] Core Bundle Part 1 pages 372-373.

[9] Index to Rule 37 Vol 2, pages 82-83.

[10] Core Bundle Part 1 page 222.

[11]

[12] Core Bundle Part 6 pages 51-55.

[13] Core Bundle Part 6 page 58.

[14] Core Bundle Part 6 page 52 read with page 61; there seems to be an incorrect reference to Brickfield instead of Brickhill.

[15] Core Bundle Part 6 pages 52-53 read with page 64.

[16] Core Bundle Part 3 page 55.

[17] Core Bundle Part 6 pages 1-2.

[18] Exhibit "E".

[19] Core Bundle Part 1 page 69, letter dated 9 March 1994.

[20] The purchaser was originally SecureProp 17 Investments (Pty) Ltd until the share block company was registered.

[21] Index to Application Vol 2 page 103 para 13.

[22] Core Bundle Part 1 page 69, letter dated 9 March 1994.

[23] Core Bundle Part 1 page 72, letter dated 18 March 1994.

[24] Core Bundle Part 1 pages 75-85.

[25] Index to Rule 37 Vol 2 page 75.

[26] Core Bundle Part 1 pages 249A-E.

[27] Core Bundle Part 1 pages 147-147A.

[28] Core Bundle Part 1 page 192. The letter was addressed to Attorney Chris Brunton.

[29] Core Bundle Part 1 pages 205-206.

[30] Core Bundle Part 1 pages 180 and 244A.

[31] Core Bundle Part 1 pages 240-242.

[32] Index to Pleadings: General Vol 1 page 24.

[33] Core Bundle Part 1 pages 270-271.

[34] Core Bundle Part 1 pages 316-318.

[35] Core Bundle Part 1 pages 319-320.

[36] Core Bundle Part 1 page 322.

[37] CG Hall Servitudes 3 ed (1973) at 15; Ex Parte Florida Hills Townships Ltd 1968 (3) SA 82 (A).

[38] A J van der Walt The Law of Servitudes (2016) at 405-406; 24 Lawsa 2 ed para 546. Footnotes omitted.

[39] Tshwane City v Link Africa & others 2015 (6) SA 440 (CC).

[40] Ibid para138. Footnote omitted.

[41] See Body Corporate, Seascapes v Ford & others [2008] ZASCA 109; 2009 (1) SA 252 (SCA); The Law of Servitudes at 447-448.

[42] The Law of Servitudes at 127-131.

[43] Willoughby's Consolidated Co Ltd v Coptha/1 Stores Ltd 1918 AD 1 at 16.

[44] Le Roux NO en ander v Burger en ander (21020/2008) [2010] ZAWCHC 127 (10 June 2010) para 13.

[45] The Law of Servitudes at 196.

[46] See P J Badenhorst, J M Pienaar and H Mostert Silberberg and Schoeman's The Law of Property 5 ed (2006) at 332-333; s 16, read with ss 75-76 of the Deeds Registries Act.

[47] The Law of Servitudes at 93 and 95; Body Corporate, Seascapes para 20.

[48] The Law of Servitudes at 92-93 and Chapter 4 para 4.6.2 at 376-380.

[49] 24 Lawsa 2 ed para 550.

[50] The Law of Servitudes at 234.

[51] 24 Lawsa 2 ed para 544.

[52] Brink v van Niekerk en 'n ander 1986 (3) SA 428 (T).

[53] Servitudes at 158.

[54] 24 Lawsa 2 ed paras 622-623.

[55] The Law of Servitudes at 262.

[56] paragraph [74] supra

[57] Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) para 18.

[58] Willoughby's Consolidated Co Ltd v Copthall Stores Ltd at 17.

[59] Willoughby's Consolidated Co Ltd v Copthall Stores Ltd at 16.

[60] Servitudes at 24.

[61] Bowring NO v Vrededorp Properties CC & another [2007] JOL 20008 (SCA) para 7.

[62] The Law of Property at 85.

[63] Core Bundle Part 1 pages 147 and 155A.

[64] Servitudes at 25-26; s 76 of the Deeds Registries Act.

[65] Core Bundle Part 1 pages 450-452.

[66] Exhibit "B" per CM 29 dated 26 February 1998 and two new directors were appointed on that date.

[67] '8 Capacity and powers of share block company (1) Notwithstanding anything to the contrary contained in any law- … (c) a share block company shall not have the power, save with the approval by special resolution of a general meeting of the share block company, to alienate or cede, as the case may be, any immovable property of which it is the owner or any of its rights to immovable property of which it is not the owner and in respect of which it operates a share block scheme; In terms of s 1 of the Act '"immovable property", in relation to a share block company, means land, and includes any building erected or to be erected.'

[67] '8 Capacity and powers of share block company

(1) Notwithstanding anything to the contrary contained in any law-

(c) a share block company shall not have the power, save with the approval by special resolution of a general meeting of the share block company, to alienate or cede, as the case may be, any immovable property of which it is the owner or any of its rights to immovable property of which it is not the owner and in respect of which it operates a share block scheme;

In terms of s 1 of the Act '"immovable property", in relation to a share block company, means land, and includes any building erected or to be erected.'

[68] '48 Alienation of land subject to right of occupation (1) Unless at least 75 per cent of the holders of rights of occupation in a housing development scheme consent thereto the land concerned may not be alienated free from such rights: Provided that the holders of the rights of occupation shall in the case of such an alienation have preferent claims in respect of the proceeds of the sale of the land, which claims shall, notwithstanding the provisions of any other law-' In terms of s 1 of the Act '"land", in relation to a housing development scheme, means land which is used or intended to be used mainly for residential purposes, including any unit and any undivided share in land;' Also in s 1, '"right of occupation" means the right of a purchaser of a housing interest- (a) which is subject to the payment of a fixed or determinable sum of money by way of a loan or otherwise, payable in one amount or in instalments, in addition to or in lieu of a levy, and whether or not such a sum of money is in whole or in part refundable to the purchaser or any other person or to the estate of the purchaser or of such other person; and (b) which confers the power to occupy a portion in a housing development scheme for the duration of the lifetime of the purchaser or, subject to section 7, any other person mentioned in the contract in terms of which the housing interest is acquired, but without conferring the power to claim transfer of the ownership of the portion to which the housing interest relates;'

[68] '48 Alienation of land subject to right of occupation

(1) Unless at least 75 per cent of the holders of rights of occupation in a housing development scheme consent thereto the land concerned may not be alienated free from such rights: Provided that the holders of the rights of occupation shall in the case of such an alienation have preferent claims in respect of the proceeds of the sale of the land, which claims shall, notwithstanding the provisions of any other law-'

In terms of s 1 of the Act '"land", in relation to a housing development scheme, means land which is used or intended to be used mainly for residential purposes, including any unit and any undivided share in land;' Also in s 1, '"right of occupation" means the right of a purchaser of a housing interest-

(a) which is subject to the payment of a fixed or determinable sum of money by way of a loan or otherwise, payable in one amount or in instalments, in addition to or in lieu of a levy, and whether or not such a sum of money is in whole or in part refundable to the purchaser or any other person or to the estate of the purchaser or of such other person; and

(b) which confers the power to occupy a portion in a housing development scheme for the duration of the lifetime of the purchaser or, subject to section 7, any other person mentioned in the contract in terms of which the housing interest is acquired, but without conferring the power to claim transfer of the ownership of the portion to which the housing interest relates;'

[69] [2007] JOL 20008 (SCA).

[70] H S Nel Jones Conveyancing in South Africa 4 ed (1991) at 250.

[71] I have checked the amendments to the regulations from date of promulgation to date of registration of the servitude on 18 February

1997: Subreg (2) amended by GN R493 of 2 April 1965 (wef 3 May 1965); by GN R359 of 26 February 1982 {wef 1 April 1982) (as corrected in the Afrikaans text by GN R692 of 8 April 1982 and by GN R179 of 28 January 1983).

[72] Core Bundle Part 1 pages 360-361, letter dated 5 November 2009.

[73] 2015 (6) SA 440 (CC).

[74] Servitudes at 30. My emphasis added.

[75] Core Bundle Part 1 page 242. My emphasis added.

[76] Index to Rule 37 Vol 2 pages 91-92.

[77] eThekwini Municipality v Tsogo Sun KwaZulu-Natal (Pty) Ltd 2007 (6) SA 272 (SCA) para 25.

[78] JDJ Properties CC & another v Umgeni Local Municipality & another 2013 (2) SA 395 (SCA) para 67.

[79] Index to Application Vol 2 page 109 para 25.5

[80] Index to Application Vol 2 page 112 para 29(e)-(f).

[81] First Defendant and Seventh Third Party's Heads of Argument - 23 November 2017 page 11 para 33.

[82] Index to Rule 37 Vol 2pages 91-92.

[83] The Law of Servitudes at 263.

[84] J Neethling and J M Potgieter Law of Delict 7 ed (2015) at 4.

[85] Law of Delict at 34. Footnote omitted.

[86] Country Cloud Trading CC v MEC, Department of Infrastructure Development 2015 (1) SA 1 (CC).

[87] Country Cloud Trading CC v MEC, Department of Infrastructure Development 2014 (2) SA 214 (SCA) para 18.

[88] Law of Delict at 129.

[89] Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-G: 'For the purposes of liability culpa arises if - (a) a diligens paterfamilias in the position of the defendant - (i) would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and (ii) would take reasonable steps to guard against such occurrence; and (b) the defendant failed to take such steps.'

[89] Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-G:

'For the purposes of liability culpa arises if -

(a) a diligens paterfamilias in the position of the defendant -

(i) would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and

(ii) would take reasonable steps to guard against such occurrence; and

(b) the defendant failed to take such steps.'

[90] 15 Lawsa 3 ed para 175.

[91] 15 Lawsa 3 ed para 176.

[92] First Defendant and Seventh Third Party's Heads of Argument - 23 November 2017 page 13 para 10.3.

[93] 15 Lawsa 3 ed para 181.

[94] Minister of Finance & others v Gore NO [2007] 1 All SA 309 (SCA) para 17.

[95] Truter & another v Deysel [2006] ZASCA 16; 2006 (4) SA 168 (SCA) paras 11 and 16.

[96] Umgeni Water & others v Mshengu [2010] 2 All SA 505 (SCA) at 505.

[97] Trinity Asset Management (Pty) Ltd v Grindstone Investments 132 (Pty) Ltd 2018 (1) SA 94 (CC) para 38.

[98] Makate v Vodacom Ltd 2016 (4) SA 121 (CC) para 192.

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