IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No 1787/11

In the matter between:

and

Reportable

IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No 1787/11
In the matter between:

and

JUDGMENT

GRIESEL J:

Factual background

[2] The two properties originally formed part of a parcel of land known as Lots 11, 12 and 13 at Sea Point, which was purchased by a Mr Alfred Kantorowitch in July 1923. Kantorowitch sold much of this parcel of land to one Coeizee in August 1923 while keeping a portion for himself. In July 1924 Kantorowitch sold off some of the land he had retained to one Titteiton leaving in his possession only a small part of the original property. It is common cause that the portion retained by Kantorowitch now constitutes the respondent's property.

[3] In 1926 Kantorowitch sold off this last piece of land to a certain Miss Courtenay, the respondent's predecessor in title. It was during this transfer that certain title deed restrictions were inserted into the title deeds of the respondent's property including the one which forms the subject of this case. That restriction as registered against the respondent's title deed reads as follows:

SUBJECT
A. . ...
B. …....

"No building other than single storied buildings shall be allowed to be erected on the properly hercbv transferred ..." (Emphasis added)
[4] When transferring the last piece of land to Courtenay in April 1*^26, Kantorowitch no longer owned any property surrounding or adjoining the property he sold to Courtenay. However, approximately two years later, in March 1928, Kantorowitch bought back a piece of the property he had earlier sold to Coetzee and which the latter had in the meantime sub-divided. This piece of land is referred to in the papers as 'Lot DA', part of which later became the applicant's property, Remainder Erf 1020. which he acquired in 2010.

[5] The applicant has submitted plans to the local authority, evincing an intention of effecting certain alterations to his property, which will have the effect of adding a further level to his existing dwelling. The present application is aimed at preventing this result, relying exclusively on the wording of the restrictive condition quoted above.

[6] The dispute between the parties revolves, in the first instance, around ihe question whether the restriction against the respondent's title deed constitutes a praedial or a personal servitude. It is trite that a praedial servitude is established over a servient tenement for the benefit of a dominant tenement in perpetuity, irrespective of the identity of the owner. A personal servitude, on the other hand, is constituted over a servient tenement in favour of a particular person and is ordinarily extinguished by the death of the holder.

[9] In the light of these various considerations. I am of the view that the condition in question constitutes a personal servitude, and not a praedial servitude. 1 am fortified in this view by the presumption in law that in cases where it is uncertain whether a particular servitude is praedial or personal, the servitude is presumed to be personal.

|I6| Moreover, there is ample authority including in the Appellate Division - stating the general principle in broad unqualified terms, viz that the right conferred by a personal servitude is inseparably attached tothe beneficiary and that it cannot be transmitted to his or her heirs, nor can it be alienated: 'when he dies it perishes with him'.

[17] Apart from these powerful considerations, the applicant's argument also falls foul of the well-established rule of construction that because a servitude is a limitation on ownership, it must be accorded an interpretation which least encumbers the servient tenement.

Conclusion

[I9] For the reasons set out above, the application is DISMISSED with costs.

B M GRIESEL
Judge of the High Court