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REPORTABLE

IN THE SOUTH GAUTENG HIGH COURT (JOHANNESBURG)

Case Number: 2006/28207

DATE: 11/10/2010

In the matter between;

GIDEON JANSE VAN RENSBURG.......................................................... First Applicant

A LID A JANSE VAN RENSBURG............................................................Second Applicant

And

JOHAN KOEKEMOER.................................................................................First Respondent

ANDRE TERBLANCHE...............................................................................Second Respondent

THE REGISTRAR OF DEEDS....................................................................Third Respondent

JUDGMENT

C. J. CLAASSEN J:

[1] Tn this case the following question requires to be answered: "Docs an oral agreement granting a servitude over immovable property contravene the writing provisions of the Alienation of Land Act No 68 of 1981?"

[2] The first and second applicants are an elderly married couple residing at 72 Pick Road, Florcntia, Alberton, Gauteng. Their daughter is married to the first respondent. The first respondent is, therefore, their son-in-law.

[3] Some time ago the applicants experienced financial difficulties. It was then orally agreed between them (as owners of the land) and the first respondent that the latter would purchase the aforesaid immovable property subject to granting the applicants the right to reside there for the rest of their lives. A written deed of sale was duly completed and the property transferred into the name of the first respondent. Subsequent to such transfer, strained relations developed in the marriage of the first respondent and the applicants' daughter. The first respondent then sold the immovable property to the second respondent (who is not opposing the relief sought), in disregard of the oral servitude of residence.

[4] The applicants as first and second plaintiffs instituted an action against the first and second respondents, as defendants, claiming registration of the right to live in the house situate on the property for the rest of their lives as a servitude of habitatio. The applicants relied on a right to register such servitude against the immovable property arising from the oral agreement. This agreement is pleaded by the applicants in their particulars of claim as follows:

"II. Die eisers aan die een kant en die eerste verweerder en Anna-Marie Koekemocr aan die ander kant, het derhalwe gedurende 1994 en tc Alberton ^'n mondelinge ooreenkoms met mekaar gesluit dat:

11.1 die eerste verweerder en Anna-Marie Kockemoer die eiendom sou koop;

11.2 die verbandspaaiemente en andcr koste ten opsigte van die eiendom betaal sou word uit die gesamentlike fondse van die eerste verweerder en Anna-Marie Koekemoer;

11.3 die eisers vir die res van hulle lewens die eiendom as hulle woonplek souk on behou;

11.4 Die eiendom op die naam van die eerste verweerder en/of Anna-Marie Koekemoer geregistreer sou word;

11.5 die eiesers gratis in die eiendom sou woon en geen huurgelde of ander vergoeding betaalbaar sou wees me, welke insluit eiendomsbclasting;

11.6 die eisers egter wel die maandelikse water- en elektrisiteits uitgawes sou moes betaal ("die ooreenkoms")(Emphasis added)

[5] It is common cause that the immovable property had not yet been transferred into the name of the second respondent when the aforesaid action was instituted.

THE FIRST EXCEPTION

[6] The first respondent excepted to the applicants' particulars of claim on the basis that it disclosed no cause of action. He raised five exceptions to the particulars of claim. The matter came before P. F. Louw AJ who handed down a judgment on 27 July 2010. In this judgment Louw AJ rejected the second to fifth exceptions but upheld the first exception. He made the following order:

"1. The first exception is upheld with costs.

2, The plaintiffs particulars of claim are set aside.

3. The plaintiffs are, if so advised, afforded 30 days within which to deliver new particulars of claim.^”

[7] The first exception was framed as follows:

"1.1 The Plaintiffs rely on an oral agreement in terms whereof the Plaintiffs allegedly obtained a right of habitatio over immovable property.

1.2 The right of habitatio amounts to an interest in land as defined in section I of the Alienation of Land Act, 68 of 1981.

1.3 In the premise, the oral agreement amounts to an oral agreement for the alienation of land.

1.4 In terms of the provisions of section 2 of the Alienation of Land Act 68 of 1981, no alienation of land after the commencement of that section would be of any force or effect unless it is contained in a deed of alienation signed by the parties thereto or by their agents acting on their written authority.

1.5 The Plaintiffs^' particulars of claim accordingly discloses no Cause of action in that the agreement upon which they rely is of no force and effect as it is not in writing nor signed by either of the parties and as such is in conflict with the provisions of the Alienation of Land Act,"

[8] Louw AJ associated himself with the criticism that has been expressed against the judgment in Cowley v Hahn 1987 (1) SA 440 (EDC) wherein Mullens J held that a usufructus is a mere personal right. ¹ This statement of law is clearly wrong. In Felix and Another v Nortier NO and Others [1996] 3 All SA 143 (SE) at 153D - J it was decided that section 2(1) of the Alienation of Land Act was also applicable to servitudes. M. C. J. Bobbcrt in an article entitled "Kennisleer", supports the view that an oral servitude is unenforceable against the successor in title of the servient tenement even though such successor had notice of the oral agreement. In such cases the doctrine of notice ("kennisleer") finds no application.²

[9] 1 have no reason to disagree with the conclusions of Louw AJ. In my respectful view, his was a well-reasoned judgment. In his judgment he granted the applicants leave to file amended particulars of claim which they duly did within the prescribed time. The first respondent again excepted to the proposed amendment of the applicants' particulars of claim on the basis that it still disclosed no cause of action.

SECOND EXCEPTION

[10] In their notice in terms of Rule 28 of the Uniform Rules of Court the applicants gave notice of several amendments of which only the last is of concern. In the proposed amendment they seek to delete paragraphs 14, 16 and 17 of the original particulars of claim substituting the following:

"15. Op 'n datum gedurende 2006, die presiese datum synde aan die Eisers onbekend, bet die Eerste Verweerder ^'n skriftelike verkoopsooreenkoms ten opsige van die eiendom met die Tweede Verweerder gcsluil ingevolge waarvan die Tweede Verweerder die eiendom van die Eerste Verweerder gekoop het

16. Bykomend tot die inhoud van paragraaf 15 hierbo het die Eerste Verweerder gepoog om die Eisers uit die eiendom te sit.

17. Die Eerste Verweerder se optrede soos in paragrawe 15 en 16 hierbo uiteengesit, stel 'n repudiasie van die ooreenkoms daar.

18. Die Eisers aanvaar nie die Eerste Verweerder se repudiasie van die ooreenkoms nie. Die Eisers hou die Eerste Verweerder aan die ooreenkoms.

19. Uit hoofde van die ooreenkoms is die Eisers geregtig om die eiendom vir die res van hul lewens te bewoon op die basis soos in paragraaf 11 hierbo uiteengesit. Die Eisers het al hulle verpligtinge soos in paragraaf 11 hierbo uiteengesit, nagekom en tender nakoming van al hulle toekomsiige verpligtinge soos in paragraaf 11 hierbo uiteengesit,

20. Altematiewelik tot paragraaf 19 hierbo het die Eisers 'n duidclike reg ('clear right') teenoor die Eerste Verweerder verkry om die eiendom vir die res van hulle lewens te bewoon op die basis soos in paragraaf 11 hierbo uiteengesit.

21. Die Eerste Verweerder se optrede soos in paragraaf 15 hierbo uiteengesit stel 'n benadeling ('injury') van die Eisers se duidclike reg daar.

22. Die Eisers het geen alternatiewe remcdie, buiten die regshulp wat hierin versoek word, tot hulle beskikking nie.

23. Gevolglik is die Eisers geregtig op ^'n finale interdik wat die Eerste Verweerder verbied om op so 'n wyse met die eiendom te handel dat die Eisers se duidclike reg daardeur geraak word.

24. Gcen regshulp word teen die Tweede Verweerder gevorder nie, buiten vir koste in die geval van opponering.

DERHALWH EIS DIE EISERS:

1. 'n Verklarendc bevel dat die Eisers geregtig is om die eiendom vir die res van hulle lewens te bewoon op die basis soos in paragraaf II hierbo uiteengesit.

2. Alternatiewelik ^;n bevel dat die Eerste Verweerder verbicd word om op so 'n wyse met die eiendom te handel dat die Eisers se duidelike reg om die eiendom vir die res van hulle lewens te bewoon op die basis soos in paragraaf 11 hierbo uiteengesit aangetas word.

3. Koste van die gcding;

4. Verdere en/of altcmatiewe regshulp.^” (Emphasis added)

[11] The first respondent objected to the proposed amendment on the basis that it would establish, if granted, an excipiable pleading. The first respondent alleged that the amendment would be excipiable if granted, as no cause of action was disclosed therein. The second exception was termed as follows:

"1, The First Defendant excepted to the Plaintiffs' particulars of claim inter alia on the ground that the agreement which the Plaintiffs intend to enforce creates a right over land and as such, the agreement has to be in writing in accordance with the provisions of the Alienation of Land Act, 68 of 1981,

2. On 27 July 2010 1 Us Lordship Mr Acting Justice Louw upheld the exception on the ground as set out hereinabove and granted the Plaintiffs 30 days within which to amend their particulars of claim,

3. The notice of amendment purports to be an amendment in accordance with the judgment of His Lordship Mr Acting Justice Louw.

4. The intended amendment:-

4_.1 intends to withdraw the conclusion in law set out in paragraph 14 that

the agreement provides for a right of habitatio; and 4.2 inserts further averments to amend the nature of the relief sought,

5. The agreement relied upon by the Plaintiffs is still an agreement which allows the Plaintiffs to live on the property for the rest of their lives and as such, amounts to a right over the property as defined in the Alienation of Land Act 68 of 1981.

6. The particulars of claim in terms of the intended amendment would accordingly amount to the enforcement of an oral agreement in contravention of the Alienation of Land Act.

7. The Plaintiffs, by their intended amendment, seek to introduce a new cause of action based upon the First Defendant's alleged repudiation of the oral agreement.

8. The alleged repudiation occurred during or about 2006.

9. The Plaintiffs intend to introduce the new cause of action more than four years subsequent lo the alleged repudiation and as such, the Plaintiffs are attempting to introduce a new cause of action which has already prescribed in terms of the provisions of the Prescription Act, No 68 of 1969.

10. Wherefore the First Defendant prays that the Plaintiffs' intended amendment be disallowed with costs."

[12] It will be noticed that the change of tack proposed in the amendment was to change the relief sought arising out of the oral agreement of servitude. The relief now claimed is one of specific performance of the oral agreement alternatively an interdict prohibiting the first respondent from continuing with actions which would interfere with the applicants' right of residence for the rest of their lives as orally agreed to with the first respondent. The question to be answered is whether the proposed amendments disclose a justiciable cause of action entitling the applicants to enforce the oral agreement of servitude alternatively to interdict the first respondent from conduct which may interfere with the applicants' rights flowing from the oral agreement of servitude.

EVALUATION

[13] In my view the short and simple answer to the question posed in the preceding paragraph is to be found in the judgment of Louw AJ. In my respectful view, he correctly held the judgment in Cowley v Hahn to be clearly wrong. The weight of authority is overwhelmingly in favour of such a conclusion. This is so because a servitude is, in its inception when agreed to by the parties, a real right which can only be enforced against the grantor once it is registered against the immovable property ^;s title deed. Subsequent to registration against the title deeds, it becomes a real right against all the world. The requirements for a right or condition in respect of land to be "real" (as opposed to "personal"), were set out by Streicher JA as follows:

"[12] In terms of s 3 of the Deeds Registries Act all real rights in respect of immovable properly are registerable. To determine whether a particular right or condition in respect of land is real, two requirements must be satisfied: (!) the intention of the person who creates the real right must be to bind

not only the present owner of the land, but also his successors in title;

and

(2) the nature of the right or condition must be such that the registration of it results in a subtraction from dominium of the land against which it is registered "³

[14] What the intention of the creator of the servitude was, is a matter for evidence. It is, however, clear that a right to reside on immovable property, is in fact ^“a subtraction from dominium" of the immovable property.⁴

[15] In this regard the statement of Innes CJ in Willoughby's Consolidated Co Ltd v CopthoII Stores Ltd 1918 AD 1 at 16 is, in my view, conclusive. It was there said:

"Now a servitude, like any other real right, may be acquired by agreement. Such an agreement, however, though binding on the contractual parties, does not by itself vest the legal title to the servitude in the beneficiary, any more than a contract of sale of land passes the dominium to the buyer. The right of the beneficiary is to claim performance of the contract by delivery of the servitude, which must be effected coram lege loci by an entry made in the register and endorsed upon the title deeds of the servient's property."

[16] In my view the weight of authority is also in favour of the conclusion that a servitude to live on immovable property for life, is indeed an "interest in land'* as contemplated by the Alienation of Land Act, 68 of 1981. In section 1 of this Act dealing with definitions, the word "Land" is defined to "include, in Chapters I and III, any interest in land,..." The relevant section for current purposes is section 2(1) of the Act which reads as follows:

"2(1) No alienation of land after the commencement of this section shall, subject to the provisions of section 282 STYLE="font-size: 11pt">⁵, be of any force or effect unless it is contained in a deed of alienation signed by the parties thereto or by their agents acting on their written authority

[17] Once it is concluded that a servitude such as habitatio or usus or usufructus constitutes a subtraction of the dominium in land it follows that any agreement granting such right has to be in writing and signed by the parties upon pain of being declared invalid in terms of the aforesaid sections. For the same reasons, mineral rights are also to be in writing to be valid.⁶ Units in a sectional titles scheme are also defined as "land" in section 1 of the Alienation of Land Act. All formalities pertaining to the sale and purchase of units have to comply with section 2(1) of the Act. In the light of these analogous situations, it seems incongruous that a servitude of habitatio, usus or usufructus? orally concluded can be valid and enforceable. In each instance there is a measure of depravation of the owner's title to the immovable property. As such they have to be in writing and signed by the parties to have any force whatsoever,

[I8] The aforesaid conclusion is fortified by the decision in Felix v Nortier supra. In that case Erasmus J was called upon to decide on exception the validity of a servitude of habitatio which was orally concluded. At page 148e - i the learned judge said as follows:

"Cowley het negaliewe kritiek ontlok, wat oortuigend aantoon dat die uitspraak - op die bedoelde aspek altans - indcrdaad verkeerd is...Van der Walt (349) verduidelik dat die feit dat bepaalde serwitute as persoonlike serwitute bcstempel word, niks met die saaklike aard van die serwituutreg te doen het nie, maar verwys na die feit dat bepaalde serwitute daardeur gekenmerk word dat die scrwituutbevoegdhede aan die reghebbende in sy persoonlike hoedanigheid toekom, sonder eiendomsreg op enige heersende saak,

Erfdiensbaarhede, sowel as persoonlike diensbaarhede (soos vruggebruik, usus en habitatio), verieen dus aan die reghebbende ^Ln bepcrktc saaklike reg (jus in re alkna) wat die eienaar so dominium in die beswaarde eiendom pro tanto verminder,,. ⁷Daar is ook by ons regskrywers eenstemmigheid te dien effekte. ⁸

Die stelling in Cowley v Hahn dat 'n persoonlike serwituut van vruggebruik (dus ook woonreg) 'n persoonlike reg behels, is kennclik strydig met alomerkendc algemene beginsel. Ek bevind derhalwe, met eerbicd, dat die uitspraak verkeerd is sover dit op die gesegde foutiewe uitgangspunt gegrond is"

[19] The conclusion of Erasmus J is in line with the statement by Lord de Villiers CT in Registrar of Deeds (Transvaal) v The Ferreira Deep Ltd 1930 AD 169 at 180:

7 For this proposition Erasmus J relied on Willoughby's Consolidated Co Ltd v Copthall Stores Ltd 1913 AD 267; Lorentz v MelJe and Others 1978 (3) SA 1044 (T) at 1049C; Barclays Western Bank Ltd v Comfy Hotels Ltd 1980 (4) SA 174 (ECD) 178C - D.

For this proposition Erasmus J relied on Van der Merwe, Sakereg Second Edition 461 and 515; Kleyn and Boraine, Sitberberg and Schoeman's. The Law of Property Third Edition 48/9 and 3S6; Delport en Olivier, Sakereg Vaymixbundel 434; LAWSA volume 25, paragraph 62, 63 and 64; Erasmus, Van der Mcrwe en Van Wyk, Lee en Honore Family, Things and Succession Second Edition paragraphs 366, 367 and 368.

"Thai personal rights, jura in personam, are not capable of registration is a truism.⁹ The definition of such rights excludes their registration. But that does not apply to the class of personal rights which are known jura in personam ad rem acquirendam. As contracts, with few exceptions, give rise only to personal rights, this class of right, although relating to immovable property, is a personal right until registration, when it is converted into a real right by such registration. The same applies to burdens upon land, encumbrances of immovable property (onefa reatia). They are personal until registration, when they become real,"

The conclusion of an oral agreement of residence for life on land, provides no right of habitatio. Registration thereof is an indispensable prerequisite for the validation of such personal servitude.

[20] There is an additional reason for holding the proposed amendment excipiable. It is evident from the contents of paragraphs 15 to 24 thereof that the plaintiffs do not seek to allege that the oral servitude was obtained because of some quid pro quo^ be it the payment of a purchase price or the exchange of other rights. The proposed amendment relies expressly on the contents of paragraph 11 of the particulars of claim. In paragraph 11.5 it is expressly alleged that the plaintiffs were afforded the right of residence "gratis" and without the need to pay rentals or any other remuneration. In effect, the proposed amendment can only be interpreted as relying on the personal servitude of habitatio having been donated to them by the first respondent. In terms of section 5 of Act 50 of 1956, donations of future entitlements have to be in writing to have any force or effect. The proposed pleading conflicts with this provision. In addition the word "alienation" of land in Act 68 of 1981 is defined to include a donation. Any donation of an interest in land must as of necessity also be in writing and signed by the parties. The proposed amendment therefore conflicts with the Alienation of Land Act even if the amendment is to be interpreted as a donation.

[21] In my view I am bound by the findings of Louw AJ in this case as far as he found that the oral agreement relied upon by the applicants in paragraph 11 of the particulars of claim, is rendered of no force or effect by the provisions of section 2(1) of the Alienation of Land Act. In the present instance the proposed amendment is still reliant upon the source of the applicants' rights being an oral agreement amounting to a servitude. It is specific performance of that oral agreement which is sought alternatively the proposed amendment relies on that oral agreement to establish a clear right entitling the applicants to an interdict. That being the case I am of the view that the exception on this ground against the proposed amendment is well taken.

PRESCRIPTION

[22] The second question which has to be answered is whether the amendment introduces a new cause of action. If so, then cadit quaestio as the right would have become prescribed. If not, it is apparent that the applicants are still attempting to enforce the oral agreement in respect of an interest in land. By seeking to amend in the manner which the amendment is framed, the applicants are in effect seeking to appeal the judgment of Louw AJ in regard to the validity of an oral servitude agreement.

CONCLUSION

[23] For the aforesaid reasons I am of the view that the exception in all of the above respects was well taken and should be upheld, I therefore make the following order:

1 . The exception is upheld with costs.

2. The amendment is refused.

3. The applicants are granted leave to further amend the particulars of claim that had been struck out within 30 days from the date of this order, if so advised.

DATED THE 11^th DAY OF OCTOBER 2010 AT JOHANNESBURG

C. J. CLAASSEN

JUDG E OF THE HIGH COURT

Counsel for the Applicants: Adv J. W. Steyn Counsel

for the First Respondent: Adv J, G. Dobie

Attorney for the Applicants: Le Roux Mathews & Du Plessis Attorneys

Attorney for the First Respondent: Greta Eiser Attorneys

Argument was heard on 22 September 2010.

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