Case  CCT 69/23
[2025] ZACC 06

Hearing Date: 12 March 2024

Judgement Date: 30 April 2025

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Wednesday, 30 April 2025, the Constitutional Court handed down judgment in an application for leave to appeal against the judgment of the Supreme Court of Appeal handed down on 21 February 2023. The application concerned a dispute over whether access to and maintenance of a garden on neighbouring property constituted a praedial servitude, thereby binding the servient property in perpetuity, or a personal servitude of usus, existing for no more than the life of a servitude holder. The matter produced three judgments. The first judgment (majority) is penned by Dodson AJ (Madlanga ADCJ, Majiedt J, Mathopo J, Mhlantla J and Tshiqi J concurring). The second judgment is penned by Chaskalson AJ (Zondo CJ concurring). The third judgment is penned by Bilchitz AJ.

The applicant is Huntrex 277 (Pty) Ltd (Huntrex) which owned a property in Constantia that is the servient property in terms of a servitude held by Huntrex’s neighbour, Ms Margot Berzack, the first respondent and owner of the neighbouring property. Ms Samantha Bain and her husband in effect owned the Huntrex property through the company and used and occupied it as their home. The second respondent is the Registrar of Deeds: Cape Town, and the third respondent is the City of Cape Town Municipality. The second and third respondents did not participate in this case, and the third respondent filed a notice to abide.

Ms Berzack was the initial owner of a property in Constantia, having acquired it in 1970. She did not use the entire property. The end of her garden was demarcated by a wooden fence. When Ms Berzack sought to subdivide and sell the unused portion of her property beyond the wooden fence in 1982, she found that a local ordinance imposed a minimum erf size. The area of the unused portion of her property which she sought to subdivide was below the minimum erf size. To get around this problem, Ms Berzack subdivided an erf that complied with the ordinance, but purported to register a servitude over the subdivided portion that would allow her as well as her successors in title to “plant, control, care for and renew” the existing garden on the subdivided portion. The terms of the servitude were agreed to with a Mr Wellens in 1983 when he purchased the subdivided portion and registered against the deed of transfer. The servitude was retained when the property was transferred to successive owners, including the Bains when they acquired it in 2017. When the Bains sought to replace the wooden fence demarcating the garden in order to prevent their dog from escaping through it, Ms Berzack refused.

Huntrex approached the Western Cape Division of the High Court, Cape Town for relief that would allow them to demolish the existing wooden pole fence at the end of the garden and to erect a new wooden pole fence along the common boundary between the subdivided erven, giving Ms Berzack access to the servitude area by way of a gate in the envisaged boundary fence. Huntrex also contended that the servitude was a personal servitude of use and had incorrectly been registered by the Registrar of Deeds as a praedial servitude. Ms Berzack then filed a counter-application seeking a declaration that the servitude conferred on her and those owning the property after her, the right to exclusive access to and use and maintenance of the garden, to retain and extend the existing wooden fence and that the owners of the Huntrex property were prohibited from erecting any fence within the servitude area. In the alternative, she sought the rectification of the servitude to align with the declaratory relief sought. Ms Berzack justified her acquisition of any rights not in the servitude title deed by exercising them openly for over 30 years and acquiring them by prescription.

The High Court found that the servitude did no more than enable Ms Berzack to engage in a personal pleasure or caprice in the form of gardening. In dealing with the requirement for a praedial servitude that it provide utility, the Court found that the activity in the servitude area did not increase the economic, industrial or professional potential of the dominant property, the Berzack Property. Hence it did not provide utility. Consequently, the High Court found that the servitude should not have been registered as it violated section 66 of the Deeds Registries Act (DRA), which prohibited the registration of personal servitudes extending beyond the lifetime of the beneficiary. The Court granted the legal relief sought by the Bains, including the rectification of the servitude to reflect as a personal servitude of usus.

Aggrieved, Ms Berzack appealed to the Supreme Court of Appeal. In a split (3-2) decision, the Court upheld Ms Berzack’s appeal and the decision of the High Court was set aside. The majority found that the servitude was praedial in nature. In doing so, it accepted that a garden servitude could be praedial in nature if it met the characteristics of a praedial servitude. This reasoning was based on the finding that the requirements of utility and perpetuity were present, noting that the servitude area served the property of Ms Berzack continuously for 30 years and the corresponding right to garden reserved on the servitude area inured in favour of Ms Berzack’s property, thus, serving the pursuit of Ms Berzack’s personal pleasure or caprice. In response to the minority judgment, the majority supported their finding of the presence of utility by noting that the effect of the servitude was to entitle the dominant property to a view of the grounds and that view, said the majority, contributed to the utility of the servitude, thus enhancing the value of Ms Berzack’s property.

The minority disagreed. It commenced by observing that the conclusion of the majority that a garden servitude like the one in question constituted a praedial servitude on the basis inter alia of a right to a view (as satisfying the requirement of utility) marked a significant development of the scope of presently recognised praedial servitudes at common law. They maintained that this development was premised on the misapplication of the legal principles which governed servitudes. The minority found that the servitude was a personal servitude and largely endorsed the reasoning of the High Court. It said that the interpretation of the title deed recording the servitude was not on its own dispositive of the matter as there were limits in property law that restricted the unbounded creation of praedial servitudes and that the contracting parties were not free to create the real rights at will. Clause P(b)(ii) granted the right to “plant, control, care for and renew” the garden within the servitude area, while Clause P(b)(iii) guaranteed access to the servitude area for gardening purposes. While acknowledging indications suggesting a praedial servitude, such as the reference to successors in title, the minority maintained that other factors pointed towards a personal servitude. Notably, the servitude was “imposed” by Ms Berzack in favour of herself, and the rights granted were personal in nature, primarily serving her enjoyment of gardening. Additionally, they invoked the common law presumption that generally land was servitude-free. In the event of doubt, an interpretation favouring a personal servitude as opposed to a praedial servitude was to be preferred since the former imposed a lesser burden on the servient land. On the examination of both the provisions of clause P and the nature of the servitude in question, the minority concluded that the servitude was personal in nature. The minority would have dismissed the appeal with costs.

Before this Court, Huntrex sought leave to appeal the judgment and order of the Supreme Court of Appeal. Huntrex submitted that this Court had jurisdiction in that the matter raised an arguable point of law of general public importance. The arguable point of law related to whether a garden servitude may be praedial on account of a right to a view constituting the element of utility. They submitted that the arguability of the point of law was evident from the fact that the Supreme Court of Appeal expressed itself by a narrow majority in its judgment, with a forceful dissent from the minority. Huntrex contended that the majority decision not only misapplied settled law, but misstated servitude legal principles, which misstatement now reflected the law. They submitted that this Court needed to provide legal certainty on the correct approach to the interpretation of servitudes. Huntrex maintained that this matter was of general public importance, as the public had an interest in the correct interpretation and enforcement of servitudes. They argued that if the Supreme Court of Appeal’s decision stood, private parties could agree to extensively and perpetually burden land regardless of public policy.

On the merits, Huntrex submitted that the findings of the minority in the Supreme Court of Appeal accorded with the proper approach to the determination of the nature of a personal versus praedial servitude, and that the Supreme Court of Appeal erred in applying a different test and concluding that the servitude was praedial.

Ms Berzack submitted that this Court’s jurisdiction was not engaged as the difference between the majority and the minority was purely in relation to factual issues. She argued that mixed questions of fact and law required an evaluative assessment which it was not the function of this Court to undertake. On the merits, Ms Berzack averred that the majority’s analysis of both the language of the servitude as well as its essential feature was unassailable, including its conclusion that the servitude was praedial in nature. She argued that a garden did indeed provide utility beyond mere pleasure and therefore the utility requirement was satisfied. She submitted that section 66 was thus of no application. Ms Berzack asked that the application for leave to appeal be dismissed with costs.

The first judgment

The first judgment, which holds majority, found that the appeal before the Court raised arguable points of law. The arguable points of law raised included whether the garden servitude was praedial or personal; the legal certainty provided for specific provisions under the DRA and the imperative to explicate the test for identifying praedial servitudes; the meaning of usus under section 66 of the DRA; the content of the utility and perpetuity requirements for praedial servitudes; and the distinguishing feature of personal servitudes by way of the intensity of the burden imposed by them on the servient property. Regarding this matter being of general public importance, the first judgment held that it was because of a finding that the servitude was praedial, and that it would bind all future owners of the dominant and servient properties in perpetuity. Furthermore, it was of general public importance because, having registered garden servitudes in the past, the obligations of the Registrar of Deeds needed to be clarified in this regard and a number of praedial servitudes over servient properties for various purposes would be precluded from future registration, depending on the finding of this Court. The first judgment granted leave to appeal on the basis that the split decision of the Supreme Court of Appeal spoke to the reasonable prospects of success and this matter also provided an opportunity to provide legal certainty on specific areas of law.

On the merits, the first judgment embarked on an analysis of the legal nature of servitudes, the perpetuity requirement, the utility requirement, the consequences of the absence of utility and perpetuity and whether the servitude was lawfully registered as a praedial servitude.

The first judgment found that the suggestion that clause P(b)(i), which precluded the erection of any wall or fence on the servitude boundary other than extension of the existing wooden pole fence, exists as a distinct, negative praedial servitude separate from clause P(b)(ii) and (iii) was incorrect. It was to be read together with clause P(b)(ii) and (iii), which protected Ms Berzack’s exclusive use of the area she gardened because of the wording that the existing wooden pole fence can only be extended and not removed. This had the effect of depriving the Bains of access to, possession of or use for any purpose of, the servitude area. The first judgment held that the garden did not meet the requirement of perpetuity for a praedial servitude. As for the requirement of utility, the first judgment held that this too was not met. The first judgment found that because there was no compliance with the perpetuity and utility requirements for a praedial servitude, the registration was unlawful. It further found that the servitude in this case was one of usus.

The first judgment granted leave to appeal and upheld the appeal. It set aside the order of the Supreme Court of Appeal, which was substituted with an order that stated that leave to appeal was granted and that the appeal was upheld. The order of the High Court was also amended so as to provide that the servitude would operate as a personal servitude of usus until the death of Ms Berzack or the transfer of the property, whichever was the earlier. Ms Berzack was ordered to pay Huntrex’s costs of the application for leave to appeal and the appeal in this Court, including the costs of two counsel.

The second judgment

The second judgment penned by Chaskalson AJ (with Zondo CJ concurring) disagreed with the reasoning of the first judgment and its conclusions on the merits of the appeal. It held that the servitude was a praedial servitude. Therefore, the second judgment would have granted leave to appeal and dismissed the appeal. The second judgment’s central point of departure with the first judgment is that the servitude makes clear that Ms Berzack’s property constitutes a dominant property. This, it holds, is a decisive factor in determining whether a praedial servitude exists. Since the servitude was registered in favour of the Berzack property, this meant that the servitude was a praedial one.

The second judgment questions whether there is still any distinct requirement of perpetuity. But even perpetuity and utility were distinct requirements, the second judgment held that both requirements were fulfilled in this case. This was so in regard to the perpetuity requirement because the land and soil on which the garden existed was permanent, and could be enjoyed by successors in title of the Berzack property regardless of what happened to the garden itself. Regarding the utility requirement, any successive owners of the Berzack property were able to use the garden and thus benefit from the servitude in their capacity as owner of the property. Such owners also benefitted from the property because the garden enhanced the aesthetic appeal and price of the property. The second judgment held, therefore, that the applicants’ reliance on the lack of perpetuity or utility to prove that the servitude was personal, and not praedial, had to fail.

The second judgment held further that the wording of the servitude was clear, in that it intended to create a praedial servitude in favour of successors in title who owned the Berzack property. Thus, it held, the servitude vested in the property itself, and not Ms Berzack personally, a clear indication that it was a praedial servitude.

Finally, the second judgment held that the law of servitudes was outdated, requiring both lawyers and laypersons to make sense of 17th Century Roman-Dutch Law principles in order to apply it to a 21st century South African context. This was undesirable given the vast differences in the worlds in which these principles applied. Therefore, the second judgment held that intervention from the South African Law Reform Commission and Parliament was necessary to ensure that the law of servitudes reflects modern-day South Africa.

The third judgment

The third judgment, penned by Bilchitz AJ, concurred with the second judgment that the servitude was praedial in nature. However, it found that two additional matters needed to be addressed: first, the servitude needed to be interpreted to determine whether it granted Ms Berzack exclusive rights of access and control over the servitude area. Secondly, it needed to be determined whether Ms Berzack could exercise her servitude in an absolutist manner – through refusing to permit any modification to the existing fencing – without regard to the interests of Huntrex, and the companion animals (or other potentially vulnerable parties) residing on the property.

On the first issue, the third judgment focused on the common law principle that, where a servitude was ambiguous, it should be interpreted in a way that least encumbered the servient property. In the view of the third judgment, this servitude did not unambiguously create a right of exclusive access for Ms Berzack. If interpreted to do so, the servitude would almost completely deprive the Huntrex owners of their enjoyment of that part of their property. The presumption thus operated in favour of a restrictive interpretation of the servitude – namely, that Ms Berzack does not have exclusive rights of access to the servitude area.

On the second issue, the exercise of Ms Berzack’s powers in terms of the servitude – her refusal to permit any modification of the existing fencing - implicated the common law principle that a servitude must be exercised in a reasonable manner (civiliter modo) and in a way that considered the servient owner’s interests. The third judgment found that this principle entailed balancing the interests of the servitude holder and servient property owner and embodies an acknowledgement that a servitude was essentially relational in nature. This principle was consistent with and required development in light of the Constitution, which required a rejection of an absolutist approach to property rights that permitted the exercise of those rights without due concern for those affected and the wider environment.

In this case, Ms Berzack already had a duty to consider the interests of the Huntrex owners and their desire and duty to ensure the safety of the dogs they care for. However, the third judgment found that the common law should be developed to require a servitude holder to consider the interests of all those who can be affected by the exercise of a servitude. This included the interests of unlawful occupiers on a property, children and non-human animals. Since the Constitutional Court had found that animals such as dogs have intrinsic value as individuals, their interests needed to be considered by Ms Berzack in their own right. The existing fencing allowed the dogs to escape the Huntrex property, thus exposing them to the risk of injury or loss of life. Permitting the modification of the fence to prevent the escape of the dogs would be consistent with what the existing servitude sought to accomplish and would not harm Ms Berzack’s enjoyment of her entitlements. Therefore, by refusing to agree to the modification of the existing fencing on the servitude area, Ms Berzack failed to exercise her servitude civiliter modo.

In relation to remedies, the third judgment held that, by virtue of section 173 of the Constitution, this Court had the power to order just and equitable relief where the Court’s general jurisdiction is invoked. Even if the focus of argument in this case was on whether the servitude was praedial or personal, the Court had a duty to ensure substantive justice and must not be shoehorned by the parties to address a narrow question if the result leads to an unjust state of affairs capable of harming vulnerable individuals’ interests.

Therefore, the third judgment would have, in addition to finding the servitude was praedial, ordered that the servitude be interpreted in such a way that Ms Berzack could not claim exclusive access to the servitude area. It would also have ordered that the servitude be exercised civiliter modo, which would have required Ms Berzack to permit the modification of the fencing for purposes of ensuring protection for the dogs cared for by the Huntrex owners.

The Full judgment  here