REPORTABLE
IN THE SOUTH GAUTENG HIGH COURT (JOHANNESBURG)

Case Number: 2006/28207
DATE: 11/10/2010

In the matter between;

And

JUDGMENT

[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.

[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.

[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.

[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.

1.3 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.

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[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:

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.

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.

24. Gcen regshulp word teen die Tweede Verweerder gevorder nie, buiten vir koste in die geval van opponering.
DERHALWH EIS DIE EISERS:

3. Koste van die gcding;

"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:-

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.

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

"[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
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PRESCRIPTION

CONCLUSION

1 .      The exception is upheld with costs. 
2.      The amendment is refused.

C. J. CLAASSEN

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.