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

Case No 2947B/2008

In the matter between:

and

THE TRUSTEES FOR THE TIME BEING

JUDGMENT
CLOETE AJ: 
INTRODUCTION

[1] This is an exception taken by the defendant (excipient) to the plaintiff's (respondent's) amended declaration filed on 5 December 2008. In this judgment I will refer to the parties as plaintiff and defendant respectively.
[2] In its amended declaration the plaintiff relies for its claim upon an oral agreement entered into between the parties on 3 May 2005 in terms of which a height restriction servitude is to be registered over the defendant's immovable property.

[3] The defendant's immovable property adjoins the plaintiff's immovable property. The material terms of the oral agreement relied upon by the plaintiff are that (a) the plaintiff would not lodge any objections to the defendant's building plans pertaining to the latters property with the local authority; (b) the defendant would register a servitude over its property in favour of the plaintiff's property whereby the height of any building to be erected on the defendant's property would be restricted to the height depicted on the defendant's amended building plans as they existed at the time of the agreement, being a height of 75.8m above mean sea level; (c) the defendant's attorneys would attend to the preparation of the necessary documentation for the registration of the servitude; and (d) the servitude would be registered once the building depicted on the amended plans had been completed.

[4] The plaintiff pleads that although it has performed its obligations in terms of the agreement and the building depicted on the amended plans has been completed, the defendant has breached its obligations by (a) failing and/or refusing to have its attorneys attend to the preparation of the necessary documentation for the registration of the servitude; and (b) refusing to register the height restriction servitude over its property in favour of the plaintiff's property.

[5] The plaintiff seeks an order declaring that the parties have concluded an agreement in terms of which the height restriction servitude is to be registered over the defendant's property, together with ancillary relief for specific performance and costs.
[6] The exception filed by the defendant is to the effect that the plaintiffs amended declaration lacks averments which are necessary to sustain a cause of action.

[7] In essence, the defendant contends that an oral agreement of servitude is unenforceable by virtue of the provisions of s 2(1) as read with the definitions of "alienate" and "land" referred to in s 1(1) of the Alienation of Land Act No 68 of 1981 ("the Act"), which are as follows:

"land" -

ISSUE TO BE DETERMINED

TEST ON EXCEPTION

every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact (the facta probantia), but every fact which is necessary to be proved (the facta probanda)'.

DEFENDANT'S ARGUMENT

[11] The defendant's two main avenues of attack are the following.
[12] The first is that the declaratory order sought by the plaintiff amounts to a donation by the defendant of a right in land in favour of the plaintiff. The terms of the order sought by the plaintiff do not provide for any counter-performance by the plaintiff in favour of the defendant. Inasmuch as what is being donated is a right in land, ie the registration of a praedial servitude, the agreement would have had to have been in writing in order to not fall foul of the provisions of the Act

[13] The second (alternative) is that the agreement pleaded by the plaintiff constitutes an exchange in that the plaintiff is giving up a right arising from its ownership of the dominant tenement (ie the right to object to plans, whether in terms of s 7 of the National Building Regulations and Building Standards Act No 103 of 1977 or the applicable title deed conditions) in return for the defendant given up a right arising from its ownership of the servient tenement (ie the right to build higher than the agreed limitation). Accordingly the agreement would likewise have had to have been in writing in order to not fall foul of the provisions of the Act.

WHETHER THERE IS A DONATION

'an agreement which has been induced by pure (or disinterested) benevolence or sheer liberality whereby a person under no legal obligation undertakes to give something (this includes the gratuitous release or waiver of a right) to another person, called "the donee", with the intention of enriching the donee, in return for which the donor receives no consideration nor expects any future advantage.'

[16] In my view, the agreement as pleaded by the plaintiff does not constitute a donation, since the plaintiff agreed not to lodge any objections to the defendant's building plans. There is thus no reason to assume at the exception stage, without having had the benefit of hearing evidence in this regard, that the defendant was impelled by pure benevolence or sheer liberality.

[18] Accordingly, if the defendant wishes to assert that this was a donation, it must do so in its plea, and the question of whether or not it was a donation can then properly be canvassed at trial.

[19] I am thus not persuaded that on this ground the amended declaration is excipiable on every interpretation that it can reasonably bear.

[21] The defendant argues that the acquisition of a servitutal right by the owner of the dominant tenement gives rise to a corresponding diminution of the rights of the owner of the servient tenement; there is accordingly an alienation of an interest in land, being the right in question. The defendant also contends that the agreement as pleaded constitutes an exchange as contemplated in the Act because one interest in land is being exchanged for another.
[22] I cannot agree that the right to object to plans constitutes an interest in land. Further, and as pointed out by plaintiff's counsel, the defendant did not provide any authority for this proposition.

[24] Simply put, what the parties agreed in the instant matter is not that either would transfer a personal right, but that each would abandon a personal right, and what the plaintiff seeks is an order to confirm the abandonment of that personal right by the defendant. In my view, whether this leads ultimately to the registration of a servitude over the defendant's property in favour of the plaintiff's property (which would create a real right) does not affect the nature of the agreement as pleaded by the plaintiff. It is simply not a transfer of a right in land by the one party in exchange for the transfer of a right in land by the other.

'The Act does not apply to a promise in a service contract to transfer land as a bonus in lieu of an annual thirteenth salary cheque The reason is that such a contract is not a "sale", "exchange" or "donation" of the land within the meaning of these words in the definition section of the Act. It is also not an exchange if one party undertakes to transfer property to another in consideration of a loan of money received from that other, nor is it a sale or donation of the property

[29] Accordingly, this ground must also fail

COSTS

[30] As the plaintiff has been successful, it follows that the defendant should effect payment of its costs.

[31] In the result, I order that the defendant's exception is dismissed with costs.