We are often confronted with the dilemma of whether a cession of a personal servitude is capable of being registered or not. From the outset a distinction must be drawn between the common law personal servitudes or servitudes par excellence and the other personal servitudes for which no numerus clausus exists.
Section 66 of the Deeds Registries Act 47 of 1937 provides a statutory prohibition for the cession a personal servitude par excellence and reads as follows:
“No personal servitude of usufructus, usus or habitatio purporting to extend beyond the lifetime of a person in whose favour it is created shall be registered, nor may transfer or cession of such personal servitude to any person other than the owner of the land encumbered thereby, be registered.”
It is clear from the aforesaid section that no statutory prohibition exists for the cession of servitudes other than the common law servitudes of usufruct, usus and habitatio.
In terms of case law (see Durban City Council v Woodhaven Ltd and Others 1987 (3) SA 555 (A) and Armstrong v Bhamjee 1991 (3) SA 195 (A)) the courts once again had to address the question as to whether the cession of personal servitudes, other than the common law servitudes, are capable of being registered.
In both of the above decisions it was held that from the very nature of a personal servitude, the right which it confers is inseperably attached to the beneficiary and cannot be alienated. In confirmation of the judgements reference is made to the case of Willoughby’s Consolidated Co Ltd v Copthall Stores 1913 AD 267 and Hotel De Aar v Jonardon Investments (Edms) Bpk 1972 (2) SA 400 A.
From a deeds registry perspective the above cases of Durban City Council and Armstrong are regarded as the authority for not allowing a cession of a personal servitude, but is this the correct state of affairs. Neither of the said cases clearly address the question as to whether a cession of a personal servitude is capable of being registered where the wording of the servitude is so couched as to allow cession of the servitude by the holder thereof.
It must be admitted that certain personal servitudes are by their very nature personal, but this does not detract from the fact that the owner of the servient tenement may agree to the servitude being ceded to someone other than the holder. It surely is the inherent right of a holder of the servitude and the owner of the dominant tenement may agree that the servitude so afforded can be ceded to another. From a deeds registration point of view such cession will attract transfer duty, but that is another issue, not of relevance to this discussion.
In the Woodhaven-case at 559 I-J, it was argued that not all personal servitudes are inalienable, but that it depended upon the nature of the rights under a particular servitude and the terms upon which the servitude was created, whether these rights could be transferred/ceded to a third person. At 562 E of the said case, it was held that in the given case it was unnecessary to decide whether a personal servitude could be rendered alienable by agreement between the parties, as there was no such provision contained in the said servitude and thus irrelevant to the case in question. The question was therefore left unanswered.
It is submitted that personal servitudes other than the par excellence servitudes are capable of being ceded, provided that the servitude is clearly worded to allow such cession, or if it can be derived from the contents of the servitude that this is the intention of the parties.
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TONKIN CLACEY PRETORIA
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