Chapter 9: Servitudes and restrictive conditions

Reading material: Notes on the reading material and its

context
The Principles of the Law of Property in South Chapter 9 (243-272)
Africa (second edition) Oxford
Silberberg and Schoeman's The Law of Chapter 14 (servitudes)
Property (sixth edition) Chapter 15 (Restrictive conditions)
The Law of Things And Servitudes(1993) Paragraphs 215-268 [Note: this book was
written in 1993 and predates many of the
recent changes in the law of property and
servitudes. You may use this as a resource to
deepen your understanding of the historical
foundation and theoretical underpinning of the
law related to servitudes.]
R. J. P. Jordan, 'Praedial Servitudes: The This is a case discussion on the Van der
Imposition of Positive Duties upon the Merwe v Wiese judgment.
Servient Owner' (1958) 75 S African LJ 181
s 6 of Prescription Act 68 of 1969

The Deeds Registries Act 47 of 1937

Spatial Planning and Land Use Management

Act 16 of 2013
Digest 8.1.15.1 https://droitromain.univ-grenoble-alpes.fr/
Anglica/D8_Scott.htm#I
A. J. Van der Walt, 'Development of the
Common Law of Servitude' (2013) 130 S
African
LJ 722
Cases:
Name of case: This case deals with the following issue…
Berzack v Huntrex 277 (Pty) Ltd and Others
(210/2021) [2023] ZASCA 17; [2023] 2 All SA
1 (SCA); 2023 (6) SA 120 (SCA) (21 February
2023)
Body Corporate of Savannah Park v
Brainwave Projects 1147 CC & Others 2012
(2) SA 276 (SCA).
Camps Bay Ratepayers and residents
Association v Minister of Planning, Western
Cape 2001 (4) SA 294 (C)
Cape Explosive Works Ltd v Denel (Pty) Ltd
2001 (3) SA 569 (SCA).
De Kock v Hänel & Others 1999 (1) SA 994
(C).
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Durban City Council v Woodhaven Ltd 1987
(3) SA 555 (A).
Ex parte Geldenhuys 1926 OPD 155
Ex parte Optimal Property Solutions CC 2003
(2) SA 136 (C).
Ex parte Rovian Trust (Pty)
Ltd 1983 (3) SA 209 (D).
Ex Parte Whitfield and Related Matters [2017]
2 All SA 841 (ECP)
First Rand Bank v National Stadium South
Africa (27000/2010) [2010] ZAGPJHC 82
Jonordan Investments (pty) Ltd v De Aar
Drankwinkel (Edms) Bpk (1969) (2) SA 117 (C)
Linvestment CC v Hammersley and Another
2008 (3) SA 283 (SCA).
Malan v Ardconnel Investments (Pty) Ltd 1988
(2) SA 12 (A)
Schwedhelm v Hauman 1947 (1) SA 127 (E)
Van der Merwe v Wiese 1948 (4) SA 8 (C) This judgment was written in Afrikaans. See
reference to case discussion.
Van Rensburg v Coetzee 1979 (4) SA 655 (A) This judgment was written in Afrikaans. See
at 672C reference to case discussion.
Van Rensburg v Nelson Mandela Metropolitan
Municipality 2008 (2) (SA) 8 (SE).

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Servitudes
Notes
• Both servitudes and restrictive conditions
are limited real rights in property (iura in re
aliena).
• Thus, both servitudes and restrictive
conditions constitute limitations on the right
of ownership.
• As both servitudes and restrictive title
conditions are limited real rights, and
therefore constitute a burden on the
property in question, they must be
registered against the title deeds of a
property.
• A servitude is a limited real right in the
property of another.
• It is a real right because it is carved out of
the full dominium of the owner and
exercised by another person.
• One cannot have a servitude in one’s own
property.
• A servitude implies that the property serves
either another property or another person.
• A rebuttable presumption exists that
ownership is unencumbered and free from
servitudes.
• A person who alleges the existence of a
servitude must prove it on a balance of
probabilities.
• Servitudes are distinguishable from
personal rights.
• Servitudes entail a direct relationship
between the servitude holder and the
property.

Relationship between holder of a servitude and the owner of the servient property

Notes
• Servient owner may not impair the right of
the servitude holder.
• Servitude holder should perform all acts
necessary for the proper exercise of the
servitude. Servitude holder must exercise
the servitude in a reasonable manner
(civiliter modo).
• South African law does not have a closed
list of real rights in respect of land (no
numerus clausus).
• New types of real rights are permitted with
great caution to prohibit the unnecessary
burdening of land.

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 • Servitudes consist of two categories,
namely, praedial and personal servitudes.
• Praedial servitudes are limited real rights
that vest in successive owners of one piece
of land.
• In other words, the dominant tenement
derives a benefit from another piece of land
(the servient tenement) that belongs to
someone other than the owner of the
dominant tenement.
• Personal servitudes are limited real rights in
the movable or immovable property of
another.
• A personal servitude vests in a particular
person only.

Distinction between praedial and personal servitudes

Notes
• Praedial servitude exists in respect of land
and always involves at least two pieces of
land.
o Personal servitudes can exist over both land
and movables.
• A praedial servitude is constituted in favour
of a piece of land. All successive owners of
the dominant tenement will benefit from the
servitude.
o A personal servitude is constituted in favour
of a person in his/her personal capacity.
• Praedial servitude is inseparably bound to
the land that it benefits.
o Personal servitude cannot be transferred by
its holder.
• Praedial servitude runs with the land
perpetually.
o Personal servitudes are extinguished when
the period lapses or when the holder dies.
• Praedial servitudes are indivisible.
o Personal servitudes are divisible. It can
exist over a part of the property, whereas a
praedial servitude exists over the whole of
the affected land.

Similarities between praedial and personal servitudes

Notes
• Both = limited real rights.
• No one can hold a servitude over their own
property.
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• No further servitude may be imposed on an
existing servitude.
• They are created and terminated in similar
ways.
• Both categories accommodate positive or
negative servitudes:
+ When it entitles the holder to do
something on or with the servient property.
- When it entitles the holder to demand that
the owner refrains from exercising
ownership entitlements.

Praedial servitudes: Requirements

Notes
• Two pieces of land owned by different
persons.
• Imposes a burden on the servient
tenement in favour of the dominant
tenement.
• Must benefit the owner of the dominant
tenement in their capacity as owner of
the land (utilitas).
• To determine utilitas the following factors
should be considered:
• In line with the rule of vicinity, the two
tenements must be close to each other
so that the servient tenement can
reasonably enhance the use and
enjoyment of the dominant tenement.
• The two tenements need not be
adjacent. If they are not adjacent,
servitudes should be established over
intervening tenements in order to ensure
access.
• The benefit created by the praedial
servitude must benefit the dominant
tenement.
• The use made of the servient tenement
must be based on a permanent feature
of the servient tenement.
• Servitudes are passive, which means
that the servitude cannot impose an
positive duty on the servient tenement
owner to do something.
• Two exceptions: servitus altius tollendi
and servitus oneris ferendi.
• See Schwedhelm v Hauman 1947 (1)
SA 127 (E); Van der Merwe v Wiese
1948 (4) SA 8 (C).
• Indivisible – servitude is imposed on the
whole servient tenement.
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Praedial servitudes: Rights and duties

Notes
• Depends on terms of agreement.
• Agreement interpreted strictly, in a manner
that is least burdensome.
• Dominant owner should exercise servitutal
rights in a reasonable manner (civiliter
modo).
• Either party may approach a court for a
declaration of rights.
• Damages awarded – where terms of
servitude are exceeded and patrimonial loss
suffered.

Types of servitude

Rural

Notes
• Mainly used for agricultural purposes.
• Three main categories: rights of way, water
and grazing servitudes. Further included:
trekpath and outspan.

Urban

Notes
• Mainly used for purposes of habitation,
trade or industry.
• Categories: right of support, rights to
encroach on neighbouring land, negative
servitudes to preserve a view or source of
light.

Ways of necessity (via necessitates)

Notes
• Different forms: right of footpath, right to
drive cattle or vehicles across land etc.
• Does not require consent of servient owner.
• Court imposes the servitude.
• Serves landlocked tenement.
• Guiding principle: route allocated must
cause least damage to the servient
tenement.

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Personal servitudes

Notes
• Limited real right.
• Object could be movable or immovable.
• Accrues to holder in personal capacity
• May not extend beyond the lifetime of the
holder (100 years in the case of a juristic
person).
• Cannot be transferred to a third party.
• No numerus clausus.
• Common forms, ususfructus, usus and
habitatio.

Type of personal servitudes

Notes
• Usufruct (the right to use and enjoy the
property belonging to another, as well as
the fruits thereof).
• Usus (the right to use and enjoy the
property of another).
• Habitatio (the right to occupy a house).
• ‘Irregular servitudes’ (servitudes that have
content usually associated with praedial
servitudes, but which are constituted in
favour of an individual).
• Restrictive conditions.
• Trading rights.
• The right of a developer to extend a section
title scheme.

Ususfructus /Usufruct

Notes
• A usufruct is a limited real right in the
property of another person.
• The usufruct is typically employed when a
testator wants to provide for surviving family
members after his or her death, but wants
the property to go to someone other than
the usufructuary.
• The usufructuary may use and enjoy the
property, which can be movable or
immovable, and corporeal or incorporeal
• The usufructuary may draw the fruits of the
property and acquire ownership of the fruits
• The fruits may be either natural (e.g. crops
and the young of livestock) or civil (interest
and rental).
• The usufructuary must gather the natural
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 fruits in order to obtain ownership of same.
If the fruits are not gathered, ownership in
same vests in the owner of the property.
• Civil fruits are acquired by the usufructuary
as soon as they become due.
• A usufruct cannot extend beyond the life of
the usufructuary.
• As he or she is not the owner of the
property, the usufructuary may not alienate,
consume or destroy the property.
• However, the usufructuary interest may
be alienated, pledged, mortgaged or sold in
execution.
• The usufructuary’s rights include
possession, administration, use, and
enjoyment of the property as well as its
natural and civil fruits.
• Consumable property cannot be the object
of a usufruct since the usufructuary must be
able to give the property back to the owner
salva rei substantia (substantially intact) at
the end of the usufructuary period.
• The usufructuary must use the property
reasonably (i.e. for the purpose for which it
was intended).
• The owner of the property retains all the
rights of ownership, subject to the usufruct
• The owner may thus alienate or mortgage
the property, subject to the usufruct.
• Quasi-usufruct – established over
consumables. Example: money.
• Money becomes property of quasi-
usufructuary.
• Quasi-usufructuary: restore the equivalent
of the capital amount to owner upon expiry
of ususfruct.
• Usufructuary – claim compensation for
expenses necessarily incurred –
preservation of the property.
• Owner may claim damages from
usufructuary where u/f caused damage.

Creation of servitudes

Notes
• Personal and praedial servitudes are
created through agreement between the
owner of the dominant tenement and the
owner of the servient tenement.
• The terms of the agreement will provide for
the nature, scope and extent of the
servitude; the price to be paid by the owner
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 of the dominant tenement as a
consideration for the grant of the servitude;
and the duration of the servitude.
• A praedial servitude can be granted in
perpetuity, or it may exist for a specified
period of time, or until the fulfilment of a
specified condition.
• The agreement gives rise to a personal right
to claim registration of the servitude
• Registration of the servitude creates its real
nature.
• A personal servitude may also be created
by agreement, but it is more common for a
personal servitude, such as a usufruct, to be
created in terms of a will.
• A servitude may also be created by state
grant.
• Both personal and praedial servitudes may
be created by statute, Sectional Titles Act
95 of 1986.
• Right of extension in s 25 of the Sectional
Titles Act 95 of 1986 not a personal
servitude but a sui generis right. See Body
Corporate of Savannah Park v Brainwave
Projects 1147 CC & Others 2012 (2) SA 276
(SCA).
• Acquisition of a servitude may also occur by
acquisitive prescription (s 6 of Prescription
Act 68 of 1969).
• Servitudes may also result from a court
order (e.g. via necessitatis).

Extinction and termination of servitudes

Notes
• Servitudes may be terminated by
agreement.
• Servitudes can usually be abandoned.
• Proof of the intention to abandon the
servitude is necessary.
• Servitudes may also be extinguished by
effluxion of time.
• Different rules pertain to positive and
negative servitudes.
• A servitude terminates if the property to
which it relates is destroyed.
• However, it will revive if the property
is restored.
• A servitude which is constituted for a limited
period, or under specific conditions, expires
at the end of the stipulated period or when
the specified conditions are fulfilled and a
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 court order confirms the termination.
• A servitude may expire in terms of a statute.
• In the case of praedial servitudes, if the
dominant and servient tenements are
merged, the servitude will be terminated.
• If the merger was not intended to be
permanent, the servitude will revive
when the properties are again
separated.
• If the merger was intended to be
permanent, the servitude will not
revive when the properties are again
separated.
• Praedial servitudes terminate when the
requirements for their constitution can no
longer be fulfilled.
• A personal servitude will expire when the
holder of the servitude dies.
• A personal servitude may also expire upon
the fulfilment of a resolutive condition.
• The Deeds Registries Act 47 of 1937
provides for the registration of the expiry of
a personal servitude.

Enforcement of servitudes

Notes
• Most of the remedies available to an owner
are also available, mutatis mutandis, to a
servitude holder.
• Thus, the following remedies are generally
available to a servitude holder:
• A declaration of rights by a court
• A mandatory interdict
• A prohibitory interdict
• The mandament van spolie
• A delictual action for damages.

Restrictive conditions

Notes
• Restrictive conditions are a unique set of
limited real rights that are utilised in the
context of town planning and the
management of land use.
• Restrictive conditions are in the nature of
urban praedial servitudes.
• They consist of a wide range of restrictions
on the use of land and are usually contained
in a deed of transfer.
• The purpose of restrictive conditions is to
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 create a co-ordinated and harmonious
layout for a township development in the
interests of all erf holders, as well as to
preserve the character of a neighbourhood.

Definition

Notes
• Conditions or limitations imposed by a seller
of erven in a township during the process of
township development, inserted in the
deeds of transfer, in the interests of all
purchasers who are mutually and
reciprocally bound to adhere to the
conditions.
• SPLUMA 16 of 2013 defines a restrictive
condition as ‘any condition registered
against the title deed of land restricting the
use, development and subdivision of land’.
• See examples in textbook.

Nature, character and status of restrictive conditions

Notes
• Regulates land use.
• Recognised as planning tools because they
function parallel to land-use schemes
• Public law character – origin in township-
establishment legislation – imposed by local
authorities. See Van Rensburg v Nelson
Mandela Metropolitan Municipality 2008 (2)
(SA) 8 (SE).
• Restrictive conditions also operate between
individuals in a private law sense.
• Mutual and reciprocal urban praedial
servitudes. See case law in textbook.
• Property in the context of s 25 of the
Constitution. Ex parte Optimal Property
Solutions CC 2003 (2) SA 136 (C).
• Conflict can arise between the provisions of
a restrictive condition and a land-use
scheme. Resolve conflict? Which restriction
takes precedence? Restrictive conditions
prevails.

Enforcement and defences

Notes
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 • When an owner uses his property contrary
to the provisions of a restrictive condition
applicable to the property, a number of
remedies are available to a person or entity
whose rights are infringed thereby.
• These remedies include:
• Approaching a court for a
mandatory or prohibitory
interdict
• Approaching a court for a
declaration of rights
• Instituting an action for
damages
• Seeking a constitutional
remedy
• Seeking a statutory remedy.
A possible defence to an action instituted to
enforce the provisions of a restrictive condition
is that the character of the area has changed
so much that the original restrictive condition is
no longer applicable, has become valueless
and need not be enforced.

Removal or amendment of restrictive conditions

Notes
• Removal of restrictive conditions can lead to
detrimental effects for the person in whose
favour it operates.
• Removal should be dealt with equitably and
fairly.
• Failure to do so could result in an arbitrary
deprivation of property in terms of s 25 of
the Constitution.
• Removal and amendments can occur in a
number of ways, namely, statutory
procedures and removal by court
application. See textbook.

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Cases or reading material summary:

Where does this case fit in?

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Self-assessment questions:

Distinguish between a personal and a praedial servitude. (4)

Explain the difference between a positive and a negative servitude. (4)

What are the requirements for the registration of a praedial servitude? (5)

Explain why a restrictive condition should properly be regarded as an urban praedial servitude?
Why are restrictive conditions utilised so extensively in urban areas? (10)

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What remedies are available to a person or entity whose rights are infringed when an owner uses
his or her property contrary to the provisions of a restrictive condition applicable to the property?
(5)

Explain the various ways in which a servitude can be terminated. (10)

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Terminology list

Legal or foreign term Translation or explanation

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Reflection:

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