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Seale and Others vs. Minister of Public Works and Others - (15 Oct 2020)

An agreement to agree without a deadlock-breaking mechanism was not enforceable


The Appellants launched an application in the Gauteng Division of the High Court, Pretoria for orders declaring and enforcing servitudal rights. The second respondent, the Minister of Water and Sanitation, opposed the application on behalf of the State. The fourth respondent, the Transvaal Yacht Club, a voluntary association that owns property adjacent to the foreshore, also opposed the application. The application was dismissed but the Appellants were granted leave to appeal. The appeal concerns servitudal rights of access over a narrow strip of State land between the edge of the water and the boundaries of adjoining properties (the foreshore), for purpose of boating and fishing on the Hartbeespoort Dam (the Dam).

A personal servitude held by a natural person inevitably terminates when that person dies. Mr Schoeman passed away in 1967. It is trite that, a praedial servitude is characterised by the fact that it attaches to a dominant tenement, regardless of the identity of the owner thereof from time to time. Therefore, an agreement cannot give rise to the right to a praedial servitude without the express or implicit identification of a dominant tenement. The rights were granted to Mr Schoeman ‘in his individual capacity or his assigns’. In context the ‘assigns’ meant persons to whom Mr Schoeman in his individual capacity might have ceded his rights. The SCA agreed with the fourth Respondent that, the use of the word ‘or’ instead of ‘and’ was significant and indicated that ‘assigns’ did not refer to successors in title. Clause K did not give rise to a right to praedial servitude.

An agreement to agree without a deadlock-breaking mechanism was not enforceable. It therefore held that because the right of access could only be determined by a further agreement, clause K was unenforceable. The unenforceability of clause K was destructive of the enforceability of the notarial contract and similar title deed provisions that had been relied upon.

About the acquisitive prescription, the onus rested on the Appellants to prove the requirements. The Appellants did not show the acquisition of the servitudes by prescription. In dealing with the declarator claimed by Ontspan Beleggings, the second Respondent unreservedly recognised Ontspan Beleggings’ servitude, meaning, there was no need for the declarator that Ontspan Beleggings had sought. Appeal dismissed.


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