THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 899/2019

In the matter between:

KINGSLEY JACK WHITEAWAY SEALE                                              FIRST APPELLANT
ONTSPAN BELEGGINGS (PTY) LTD                                       SECOND APPELLANT
HI FRANK COMPONENTS (PTY) LTD                                            THIRD APPELLANT
SCHOEMANSVILLE OEWERKLUB                                                 FOURTH APPELLANT

and

MINISTER OF PUBLIC WORKS                                                         FIRST RESPONDENT
MINISTER OF WATER AND SANITATION                              SECOND RESPONDENT
PREMIER OF THE NORTH-WEST PROVINCE                           THIRD RESPONDENT
TRANSVAAL YACHT CLUB                                                     FOURTH RESPONDENT
REGISTRAR OF DEEDS, PRETORIA                                          FIFTH RESPONDENT

Neutral citation:
Seale and Others v Minister of Public Works and Others
(899/2019) [2020] ZASCA 130 (15 October 2020)
Coram:
PONNAN, ZONDI, DAMBUZA and VAN DER MERWE JJA and
WEINER AJA
Heard:
7 September 2020
Delivered:
This judgment was handed down electronically by circulation to the
parties' representatives by email, publication on the Supreme
Court of Appeal website and release to SAFLII. The date and time
for hand-down is deemed to be 10h00 on 15 October 2020.
Summary:    Contract – agreement to agree – unenforceable in absence of deadlock-
breaking mechanism.
Acquisitive prescription – of servitude under Prescription Act 18 of 1943 – proof required
of actual use of servitude as if of right continuously for 30 years.

_____________________________________________________________________

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Davis J sitting as court
of first instance):
The appeal is dismissed with costs, including the costs of two counsel.
The costs order of the court a quo is substituted with the following:
‘(a)
The first, third and fourth applicants are jointly and severally ordered to pay the
costs of the second respondent, including the costs of two counsel;
(b)
The second respondent is ordered to pay the costs of the second applicant,
including the costs of two counsel;
(c)
The applicants are jointly and severally ordered to pay the costs of the fourth
respondent, including the costs of two counsel.’

JUDGMENT

Van der Merwe JA (Ponnan, Zondi, Dambuza JJA and Weiner AJA concurring)
[1] The Hartbeespoort area is a popular destination for spending holidays and
leisurely weekends. Its central attraction is the Hartbeespoort Dam (the Dam). The Dam
was built by the government of the Union of South Africa (the Union Government) during
the early part of the previous century. Its legal successor, the national government of
the Republic of South Africa (the State), owns a narrow strip of land on the eastern bank
of the Dam between the waterline and the boundaries of the adjacent properties. These
properties include erven in the Schoemansville and Meerhof townships. This strip of
State land has at least since 1925 been referred to as the foreshore. The appeal
concerns servitudal rights of access over the foreshore for purpose of boating and
fishing on the Dam.

[2] The first appellant is Mr Kingsley Jack Whiteaway Seale. He is a director of both
the second appellant, Ontspan Beleggings (Pty) Ltd and the third appellant, HI Frank
Components (Pty) Ltd. Each of the appellants own properties that are situated adjacent,

or in close proximity, to the foreshore. The fourth appellant is the Schoemansville
Oewerklub, a voluntary association that acts in the interest of its members. The majority
of its members are registered owners of erven in Schoemansville.

[3] The appellants launched an application in the Gauteng Division of the High
Court, Pretoria for orders declaring and enforcing servitudal rights over the foreshore.
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 court a quo (Davis J) dismissed the application, but granted leave to the appellants
to appeal to this court.

Background
[4] The history of the matter spans more than a century. The following exposition
suffices for a proper understanding of this judgment. At the time when the
Union Government determined to construct the Dam (then referred to as the
Hartebeestpoort Reservoir), the Schoeman family owned portions of the freehold farm
Hartebeestpoort nr 498 in the district of Pretoria. The Crocodile River, which would be
the
main
source
of
water
for
the
Dam,
traversed
the
original
farm.
Mr Johan Hendrik Schoeman and members of his family were the co-owners of the land
known as the northern portion of the farm Hartebeestpoort. Mr Schoeman was the
owner of an adjacent farm referred to as a certain portion of the south-eastern portion
of the farm Hartebeestpoort. Parts of these two portions of land would be submerged
by the Dam.

[5] In the light hereof, on 25 January 1918, the Union Government, represented by
the Minister of Lands, and the owners of the aforesaid portions of the farm
Hartebeestpoort, represented by Mr Schoeman, entered into an agreement of sale
(the 1918 agreement). In terms thereof the Union Government purchased the portions
of the aforesaid tracts of land from the Schoeman family that would be submerged by
the Dam. The eastern boundary of the land purchased was determined to be a line
running three feet above the projected high flood level of the Dam.

[6] The land in question was subdivided accordingly and the portions thereof that
became the property of the Union Government presently consists of three titles. These
adjoining properties are presently described as the following portions of the farm
Hartbeestpoort: the remaining portion of portion 28, measuring 474,6058 hectares
(portion 28); the remaining extent of portion 29, measuring 231,4418 hectares (portion
29); and portion 59 (a portion of portion 29), measuring 2,0296 hectares (portion 59).
They vest in the State as the legal successor of the Union Government.

[7] After the subdivision, Mr Schoeman retained ownership of the remainder of the
portion of the south-eastern portion and shortly afterwards also acquired ownership of
the remainder of the northern portion. The boundary between Mr Schoeman’s land and
the State land therefore ran above the actual (fluctuating) waterline of the Dam. As I
have said, this strip of land is referred to as the foreshore and has to be traversed to
gain access to the Dam from the east.

[8] Clause 3(k) (clause K) of the 1918 agreement provided for the retention of rights
of access to the Dam in the following terms:
‘The said Johan Hendrik Schoeman in his individual capacity or his assigns shall retain the right
of access to the said Hartebeestpoort Reservoir on certain three places to be mutually agreed
upon by the parties to these presents – the said places being situated approximately as follows:
(a) near the south eastern entrance to Hartebeestpoort on the eastern bank of the River, (b)
near the site of the old dam on the Crocodile River built by the now late General Schoeman,
and (c) at a suitable site in the Zwartspruit Valley – for the purpose of boating on the said
reservoir and fishing therein, provided that the said Schoeman or his assigns shall at all times
be subject to all general regulations and restrictions that may be framed and at any time come
into force in connection with the said reservoir and the use thereof by the public, provided that
such regulations shall be of general application and that the said Schoeman or his assigns shall
not be prevented from reasonably using the said reservoir for the said purposes unless and
until the water of the said reservoir may at any time be required for domestic purposes and the
public are excluded from access to the Reservoir when the rights hereby granted to the said
Schoeman shall cease and determine until such time as such restrictions are withdrawn. It is
further understood and agreed that if in regards to the operations to be undertaken in connection
with the said reservoir the actual sites marked on the last mentioned diagrams or any of them
should be required for the purposes aforesaid that then and in that case a suitable site as near
as possible to the original site shall for the purposes aforesaid be granted to the said Schoeman

in his individual capacity who shall have the right of selecting such site or sites – which shall
not interfere with the working and works of the Reservoir.’

[9] For reasons lost in time, the parties never agreed upon the precise locations of
the ‘three places’. Mr Schoeman nevertheless desired the registration of these rights.
After correspondence had been exchanged, the Union Government during 1922
entered into a notarial contract with Mr Schoeman (the notarial contract). It recorded
the 1918 agreement, reproduced clause K and proceeded as follows:
‘WHEREAS it is desired to have the right so reserved in Clause K registered in the Deeds Office,
but as the Government will hold that area which will form the submerged area of the said
Hartebeestpoort Reservoir under a great many titles, some portions of which have not yet been
acquired by the Government.

NOW THEREFORE, the parties hereto agreed to register this Contract in the Deeds Office in
the Register known as the Register for Diverse Acts, whereby the rights granted to the Party of
the other part, the said JOHAN HENDRIK SCHOEMAN, in his individual capacity, or his
Assigns, and more fully detailed in Clause K above set out in full, may be recorded and
registered in favour of the said JOHAN HENDRIK SCHOEMAN, in his individual capacity or his
Assigns, against the said submerged area of the Hartebeestpoort Reservoir, subject to the
conditions that when and soon as the Government has acquired the whole of the area which
will form the submerged area of the Hartebeestpoort Reservoir, and has taken out a Certificate
of Consolidated Title of such area; the parties hereto, their Successors in Title or Assigns, bind
themselves to enter into a Contract whereby the rights as detailed in said Clause K of the said
Deed of Sale, may be properly registered as a servitude against the Titles of the servient and
dominant tenements respectively.’

[10] It is apparent that the notarial contract envisaged two registrations. The first was
the registration of the notarial contract itself in the Register of Diverse Acts. The second
was the registration of a servitude. The first registration took place on 3 October 1922.
The second did not take place. Although the Union Government and its successors for
many years afterwards expressed the intention to acquire the titles of the area
submerged by the Dam, the State at some stage decided not to do so. It therefore did
not take out the certificate of consolidated title envisaged in the notarial contract.

[11] It appears that Mr Schoeman was an entrepreneur of note. During 1923 he
established the Schoemansville Township. It was established on the remainder of the

northern portion adjacent to portion 28. The title deeds of all the erven in
Schoemansville contain the following clause:
‘All registered erf-holders shall be entitled in common with JOHAN HENDRIK SCHOEMAN, his
Successors in Township Title or Assigns, to the right of access to the dam near the
South- eastern entrance to Hartebeestpoort on the Eastern-Bank of the Crocodile River, for the
purpose of boating on the said reservoir and fishing therein, subject to the conditions of Notarial
Agreement No. 99/1922M, dated the 27th day of September, 1922, filed in the Deeds
Office. . . .’

[12] During 1935 Mr Schoeman also established the township of Meerhof. Meerhof
is situated adjacent to portions 29 and 59. The title deeds of the erven in Meerhof
contain a similar provision in respect of access to the Dam:
‘All registered erfholders in the Township shall be entitled in common with the Applicant, his
successors in Township Title or Assigns to the right of access to the Lake at the southern end
thereof near the late H.J. Schoeman’s old dam known as Sophia’s Dam (now adjoining
Schoemansville Station ) on the Eastern Bank of the Crocodile River for the purpose of boating
in the said lake and fishing therein subject to the conditions of the Notarial Agreement No.
99/1922M, dated the 27th September 1922, and filed in the Deeds Office. The owners of
business erven Nos. 89, 90, 164 and 165 however, shall be entitled to ply boats for hire on the
Lake, as from the abovementioned access.’

[13] In the meantime, Mr Schoeman persuaded the Union Government to retransfer
a portion of the land that had been transferred pursuant to the 1918 agreement, to him.
The decision of the Union Government was taken on 10 October 1925 and was
recorded in Cabinet Minute 3125 (the Cabinet Minute). In terms thereof, the following
was approved:
‘1.  The grant to JOHAN HENDRIK SCHOEMAN of certain piece of land being Portion No. 1
of Portion L of the Northern portion of the farm Hartebeestpoort No. 498, District Pretoria,
measuring 476 square roods, together with the right to use the foreshore immediately in
front of the said land and between it and the Hartebeestpoort Lake, subject to rights of
access to the said foreshore in favour of the Government of the Union of South Africa and
its servants.

2.    The grant of a right of user in favour of the TRANSVAAL YACHT CLUB in respect of the
foreshore immediately in front of Stands Nos. 117 and 118 of Schoemansville Township

and between the said Stands and the Hartebeestpoort Lake. Subject, however, to rights of
access in favour of the Government of the Union of South Africa and its servants.

3.    The reservation of the foreshore adjoining the Hartebeestpoort Lake extending from Stand
No. 121 to the corner of Tolstoi Street and Lakeside Avenue of Schoemansville Township
as a landing place for the general public and persons plying for hire with boats on the
Hartebeestpoort Lake, other than standholders in the Schoemansville Township, the owner
for the time being of the piece of land referred to in paragraph (1) above and the
Transvaal Yacht Club referred to in paragraph (2) above, subject to rights of access in
favour of the Government of the Union of South Africa and its servants.

4.   The reservation of the foreshore adjoining the Hartebeestpoort Lake extending from the
corner of Tolstoi Street and Lakeside Avenue to Riekert Street of Schoemansville
Township, as a landing place for the owners of Stands in Schoemansville Township other
than the owner for the time being of the piece of land referred to in paragraph (1) above
and the Transvaal Yacht Club referred to in paragraph (2) above, subject to rights of access
in favour of the Government of the Union of South Africa and its servants.’

[14] Paragraph 1 of the Cabinet Minute was given effect to by Crown Grant 67 of
1926 (the Crown Grant). It was registered in the Deeds Office on 1 April 1926. In terms
thereof Mr Schoeman received transfer of a piece of land, measuring some 48 hectares,
presently known as portion 43 of the farm Hartebeestpoort (portion 43). It does not form
part of the Schoemansville Township. The Crown Grant also provided for access to the
Dam, as follows:
‘The owner of the land hereby granted shall be entitled to the free use of the foreshore
immediately in front of it, and between it, and the Hartebeestpoort Lake as indicated on the
Diagram S.G. No. A.1936/25. . . .’
This servitude was duly endorsed on the title deed of the servient tenement, presently
portion 28.

[15] The fourth respondent was established on 23 February 1923. It was a condition
of the grant of portion 43 to Mr Schoeman that he would donate erven 117 and 118,
Schoemansville to the fourth respondent. These erven were duly transferred to it. It
subsequently also obtained ownership of the adjacent erf 119. These three erven have
since been consolidated and are presently known as erf 1113 Schoemansville. The
rights that had been approved in terms of para 2 of the Cabinet Minute were registered

as a servitude against the title deed of the servient tenement, in favour of the fourth
respondent’s land.

[16] Lakeside Avenue in Schoemansville is presently known as Waterfront Street.
During the early 1980’s a bird sanctuary was established on parts of the foreshore
referred to in paragraphs 3 and 4 of the Cabinet Minute. The relative locations of the
adjacent properties that I have referred to can be pictured as follows. Moving roughly
from west to east, one would traverse the foreshore in this order: in front of portion 43;
in front of erf 463, Schoemansville (erf 463); in front of erf 1113, Schoemansville; from
in front of erf 121, Schoemansville to the western boundary of the bird sanctuary; the
bird sanctuary itself; and from the eastern boundary of the bird sanctuary to in front of
the corner of Riekert Street and Waterfront Street in Schoemansville.

[17] The first appellant established the Hartbeespoort Snake and Animal Park on
portion 43 during 1962. In 1964 he extended his operation to the adjacent erf 463, with
the permission of the owner thereof, Mr Schoeman. During 1965 Mr Schoeman donated
erf 463 to the Peri-Urban Health Board. The first appellant leased erf 463 from it. During
1973 the first appellant obtained the shareholding in the second appellant and the
second appellant obtained transfer of portion 43. And in 1982 the Peri-
Urban Health Board transferred erf 463 to the first appellant.

[18] As I have said, erf 1113 adjoins erf 463. In terms of various successive lease
agreements, the fourth respondent has since 1969 leased not only the foreshore in front
of its property but also approximately two thirds of the foreshore in front of erf 463. The
fourth respondent effected significant improvements to the foreshore, to facilitate
access to the Dam for yachting. The fourth respondent’s use of the foreshore in front of
erf 463 was and remains a major bone of contention. One of the principal purposes of
the appellants’ application was to limit the fourth respondent to the use of the foreshore
in front of the fourth respondent’s property.

[19] The first appellant also owns a residential property in Schoemansville (erf 297),
as well as erven 89, 90, 164 and 165 in Meerhof. Erf 90 adjoins portion 59 and the other
erven are situated adjacent to portion 29. The third appellant is the owner of erf 1132 in
Schoemansville. It is situated opposite erf 463, which lies between it and the foreshore.

[20] In the court a quo the first, third and fourth appellants essentially claimed an
order directing the State to take all steps necessary to register praedial servitudes of
access to the Dam for purposes of boating and fishing, as follows: (a) over portion 28
in favour of the land on which the township of Schoemansville had been established
(that is all the erven in Schoemansville), in accordance with the aforesaid provision in
the title deeds of these erven; (b) over the foreshore in front of erf 463, in favour of
erf 463; (c) over portion 29 in favour of the land on which the township of Meerhof had
been established (that is all the erven in Meerhof), in accordance with the aforesaid
provision in the title deeds of these erven; and (d) over portion 59, in favour of erf 90,
Meerhof. Thus, the place of access envisaged in para (c) of clause K is not directly
relevant to the matter. The second appellant, in essence, sought a declarator that it is
entitled to free use of the foreshore in front of portion 43, subject to the rights of the
State.

Analysis
[21] It is apparent that the case of the second appellant was very different to that of
the other appellants. Unless indicated otherwise, I henceforth refer to the first, third and
fourth appellants collectively as the appellants and to the second appellant as Ontspan
Beleggings. I commence with a consideration of the appeal of the appellants. They
contended that they were entitled to the enforcement of contractual rights to registration
of the servitudes, alternatively that they had acquired the servitudes by acquisitive
prescription.

[22] It is trite that a servitude is a right to use the property of another in a particular
manner. The right may be attached to a particular (dominant) tenement
(praedial servitude) or to a particular person (personal servitude). Both are real rights
that come into existence upon their registration in the Deeds Office. A personal right to
claim the registration of a servitude (praedial or personal) may, of course, arise from an
agreement. Whether or not an agreement provides for the right to the registration of a
servitude, and whether such servitude would be praedial or personal, depends on an
interpretation of the particular agreement in accordance with the ordinary well-known
rules of construction. See Willoughby’s Consolidated Co Ltd v Copthall Stores Ltd 1918
AD 1 at 16.

[23] The appellants contended that the rights to obtain the registration of the
servitudes emanated from clause K on its own, or clause K together with the notarial
contract. A personal servitude held by a natural person inevitably terminates when that
person dies. See AJ van der Walt The Law of Servitudes (2016) at 565-566.
Mr Schoeman passed away in 1967. It follows that the contractual case was entirely
dependent thereon that Mr Schoeman had obtained the right to the registration of a
praedial servitude. 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.

[24] Clause K did not grant rights in favour of a dominant tenement. It provided quite
the contrary. The rights were granted to Mr Schoeman ‘in his individual capacity or his
assigns’. Clause K did not require him to be the owner of any property. In context the
‘assigns’ meant persons to whom Mr Schoeman in his individual capacity might have
ceded his rights. I agree 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.
It would make no sense to grant rights of access to a person or his successors. Insofar
as there might be an ambiguity, it should be resolved by the application 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, that
is, in this case, a personal servitude. See Kruger v Joles Eiendomme (Pty) Ltd and
Another [2008] ZASCA 138; 2009 (3) SA 5 (SCA) para 8. In my opinion clause K did
not provide the right to a praedial servitude.

[25] The mere registration of the notarial contract could not alter this position. The
notarial contract, in any event, specified that the purpose of the registration of the
notarial contract was that the rights granted in terms of clause K might ‘be recorded and
registered in favour of the said Johan Hendrik Schoeman, in his individual capacity or
his Assigns, against the submerged area of the Hartebeestpoort Reservoir’.

[26] There are indications that the second part of the notarial contract might have
envisaged the registration of a praedial servitude. These are, first, that, other than in
clause K and in respect of the registration of the notarial contract itself, the second part

referred to ‘the parties hereto, their Successors in Title or Assigns’. Second, it expressly
referred to the registration of a servitude against the titles of the servient and dominant
tenements respectively. The registration of a servitude was, however, subject to a
finding that the ‘conditions’ had been fictionally fulfilled, as the appellants contended.
Their reliance on fictional fulfilment appears to be tenuous. Even if it is accepted for
argument’s sake that the notarial contract placed a tacit contractual duty on the Union
Government to take steps to acquire all the land that had been submerged by the Dam
and that it or its successor in law took a decision not to acquire the land, the appellants
had to prove that the decision had been taken with the intention to avoid the registration
of the servitude. See Lekup Prop Co No 4 (Pty) Ltd v Wright [2012] ZASCA 67; 2012
(5) SA 246 (SCA) paras 7 and 10-11. There was no evidence as to when and why such
a decision had been taken. But, as I shall demonstrate, none of the aspects mentioned
in this paragraph matters if clause K was an unenforceable agreement to agree. This is
the issue that I now turn to.

Agreement to agree
[27] In terms of clause K access to the Dam would be obtained at three places. Only
the general location or vicinity of the three places was stated. Clause K did not identify
the locations of the three places. They had to be mutually agreed by the parties. Material
elements of the right of access would therefore only be determined by further
agreement. Thus, there was an agreement to agree. I accept that there was an implicit
obligation on the parties to negotiate in good faith, but subject thereto, the further
agreement was entirely dependent on the will of the parties. Clause K did not contain
any provision that would regulate the position in the event of failure of the negotiations
in respect of the proper identification of the three places.

[28] Our law in respect of the enforceability of an agreement to agree developed in
the following manner. In Premier of the Free State Provincial Government and Others
v Firechem Free State (Pty) Ltd. 2000 (4) SA 413 (SCA); [2000] 3 All SA 247 (A) at
431G-H Schutz JA said, with reference to earlier authority, that ‘an agreement that the
parties will negotiate to conclude another agreement is not enforceable, because of the
absolute discretion vested in the parties to agree or disagree’. In Southernport
Developments (Pty) Ltd v Transnet Ltd 2005 (2) SA 202 (SCA); [2005] 2 All SA 16
(SCA) at 208C-D Ponnan AJA, writing for the court, held that the dictum in Firechem is

not applicable to a contract that contains what he referred to as a deadlock-breaking
mechanism. By that he meant provisions that prescribe further steps to be followed in
the event of the failure of the negotiations.

[29] Letaba Sawmills (Edms) Bpk. v Majovi (Edms) Bpk. 1993 (1) SA 768 (AD); [1993]
1 All SA 359 (A) provided an example of such a deadlock-breaking mechanism. There
an option to renew a lease on the basis that in the event of the parties failing to agree
on the rental, a market-related rental would be determined by arbitrators, was held to
be enforceable. Southernport similarly dealt with an option to lease specified properties
(or agreed portions thereof) ‘on the terms and conditions . . . negotiated between the
parties in good faith’. The court held at 211F-G that the enforceability of the option had
been saved by a provision that should the parties be unable to agree on any of the
terms and conditions, the dispute would be referred to an arbitrator whose decision
would be final and binding.

[30] Ponnan AJA referred to the judgment of Kirby P in the Australian case of Coal
Cliff Collieries (Pty) Ltd v Sijehama (Pty) Ltd (1991) 24 NSWLR 1 and proceeded to say:
‘[16]
Kirby P then adverted to three situations.  He stated of the first:
“In many contracts it will be plain that the promise to negotiate is intended to be a binding
legal obligation to which the parties should be held.  The clearest illustration of this class will
be cases where an identified third party has been given the power to settle ambiguities and
uncertainties… But even in such cases, the court may regard the failure to reach agreement
on a particular term as such that the agreement should be classed as illusory or unacceptably
uncertain: In that event the court will not enforce the agreement.”;
of the second:
“In a small number of cases, by reference to a readily ascertainable external standard, the
court may be able to add flesh to a provision which is otherwise unacceptably vague or
uncertain or apparently illusory…”;
and, of the third:
“Finally, in many cases, the promise to negotiate in good faith will occur in the context of an
“arrangement” (to use a neutral term) which by its nature, purpose, context, other provisions
or otherwise makes it clear that the promise is too illusory or too vague and uncertain to be
enforceable:…”.
The principles enunciated in Coal Cliff Collieries accord with our law. The first and third
situations alluded to by Kirby P are covered, respectively, by Letaba Sawmills and Firechem.’

[31] In his majority judgment in Makate v Vodacom (Pty) Ltd [2016] ZACC 13; 2016
(4) SA 121 (CC) Jafta J said that our common law, as reaffirmed in Southernport, was
that an agreement to negotiate in good faith is enforceable if it provides for a deadlock-
breaking mechanism in the event of the negotiating parties not reaching consensus.
He, however, also said:
‘[100] Whether an agreement to negotiate in good faith is enforceable where there is no
deadlock-breaking mechanism remains a grey area of our law.  This is because Firechem Free
State suggests that it is not enforceable while Everfresh suggests otherwise.  In Everfresh,
Moseneke DCJ said:

“Were a court to entertain Everfresh’s argument, the underlying notion of good faith in
contract law, the maxim of contractual doctrine that agreements seriously entered into should
be enforced, and the value of ubuntu, which inspires much of our constitutional compact, may
tilt the argument in its favour.  Contracting parties certainly need to relate to each other in
good faith.  Where there is a contractual obligation to negotiate, it would be hardly imaginable
that our constitutional values would not require that the negotiation must be done reasonably,
with a view to reaching an agreement and in good faith.”’

[32] The combined rationes decidendi of the decisions of this court in Firechem and
Sourthernport are therefore that an agreement to agree without a deadlock-breaking
mechanism is not enforceable because it is dependent on the absolute discretion of the
parties and/or because it is too vague and uncertain to be enforceable. We are bound
by these decisions, of course, unless we determine that they were clearly wrong. The
appellants did not advance such an argument. I am, in any event, by no means
convinced that these decisions were wrong. With respect, I fail to see how a mere
agreement to agree (in good faith) can be enforced without violation of the fundamental
principle that a court may not make a contract for the parties.

[33] As I have said, the appellants did not question these principles. Instead, they
attempted to avoid their application by arguing, on the strength of Nach Investments
(Pty) Ltd v Yaldai Investments (Pty) Ltd and Another [1987] ZASCA 25; [1987] 2 All SA
154 (A); 1987 (2) SA 820 (A), that clause K had contemplated a general servitude. Hefer
JA said in Nach at 831D-E that it has long been accepted that a servitude may be
constituted either along a specifically agreed route (a definite or defined servitude) or
generally (simpliciter). He added that in the latter case the entire servient tenement is

subject to the servitude and the grantee may select a route provided only that it does so
civiliter modo. As clause K had created the right to a servitude simpliciter, so the
argument went, the identification of the places of access was immaterial.

[34] Both the language and the context of clause K, however, point to an intention to
agree on a definite servitude. The right of access was expressly created at three specific
places to be selected and identified by mutual agreement from each of the general areas
mentioned. It is also apparent from clause K that the locations of the places mattered to
the Union Government. The fourth respondent pointed out that clause K provided that
should any of the actual sites marked on diagrams (that is, agreed sites) subsequently
be required for the operations to be undertaken in connection with the Dam, ‘a suitable
site as near as possible to the original site shall for the purposes aforesaid be granted
to the said Schoeman in his individual capacity who shall have the right of selecting such
site or sites – which shall not interfere with the working and works of the Reservoir’.
Thus, the parties to clause K did not agree to a general servitude and merely made
reference to a future agreement because they contemplated that defined places of
access would eventually be agreed upon. Clause K rather complied with the description
in Nach at 831F-G: ‘If the intention is to constitute a specific right of way, i.e. one which
may only be exercised along a specifically defined route, the agreement is inchoate at
least as to a material term and for that reason it is unenforceable until the route is agreed
upon’.

[35] It follows that clause K was unenforceable. That impacted on the enforceability
of the notarial contract and the title deed provisions. The notarial contract provided that
the parties ‘bind themselves to enter into a Contract whereby the rights as detailed in
said Clause K of the said Deed of Sale may be properly registered as a servitude. . .’.
In the absence of further agreement, therefore, the notarial contract could not have an
independent existence. And in respect of the places of access the provisions in the title
deeds of the erven in Schoemansville and Meerhof echoed the wording of para (a) and
para (b) of clause K respectively. Thus, the unenforceability of clause K was destructive
of the enforceability of the notarial contract and the title deed provisions.

[36] The first appellant placed some reliance thereon that, on 6 November 1962,
Mr Schoeman had entered into a notarial agreement in terms of which he ceded the

rights under clause K and the notarial contract to his sons and that they had
subsequently (on 30 August 1992) ceded these rights to him. The short answer hereto
is nemo plus iuris ad alium transferre potest quam ipse habet; no one can transfer to
another a greater right than he has himself. As I have said, the rights that had
purportedly been ceded, were not enforceable. And even on the basis that Mr
Schoeman had a personal servitude, neither he nor his sons could cede rights that
extended beyond Mr Schoeman’s lifetime. It follows that the contractual case had to fail.

Acquisitive prescription
[37] This brings me to the question of acquisitive prescription. The effect of s 3 of the
State Land Disposal Act 48 of 1961 was that the relevant period of prescription had to
be completed prior to 28 June 1971. The Prescription Act 18 of 1943 (the 1943 Act) was
repealed by the Prescription Act 68 of 1969 with effect from 1 December 1970. The
appellants accepted that the matter was governed by s 2 of the 1943 Act. It provided:
‘(1)  Acquisitive prescription is the acquisition of ownership by the possession of another
person’s movable or immovable property or the use of a servitude in respect of immovable
property, continuously for thirty years nec vi, nec clam, nec precario.
(2)  As soon as the period of thirty years has elapsed such possessor or user shall ipso jure
become the owner of the property or the servitude as the case may be.’

[38] The onus rested on the appellants to prove all these requirements. See
Stoffberg NO and Others v City of Cape Town [2019] ZASCA 70. It is not necessary to
consider them in detail. I confine myself to the element of ‘use of a servitude in respect
of immovable property’. This postulates de facto exercise of a servitude as if of right, by
a person and his or her successors in title for a continuous period of 30 years. See
Bisschop v Stafford 1974 (3) SA 1 (AD) at 9C.

[39] As I have said, the appellants claimed the registration of praedial servitudes in
favour of the following properties: all the erven in Schoemansville; erf 463; all the erven
in Meerhof; and erf 90, Meerhof. In view of what I have said, this issue must, of course,
be determined on the basis that no contractual rights to such servitudes existed.

[40] It did not appear from the papers when boating and fishing on the Dam had
become viable. The notarial contract was entered into on 27 September 1922. It

recorded that the land that had been purchased in terms of the 1918 agreement, ‘will
form the submerged area of the HARTEBEESTPOORT Reservoir which is at present in
course of constructions’. An advertisement of a public auction of the proposed
Schoemansville erven, to be held on 14 December 1922 in the town hall in Pretoria,
contained images of the Dam ‘as it should appear when completed’. As I have said, the
Schoemansville township was formally established in 1923. In the circumstances it
seems probable that little or no boating and fishing on the Dam could have taken place
prior to the establishment of Schoemansville.

[41] Assuming, nevertheless, that Mr Schoeman in his capacity as the owner of the
remainder of the northern portion, was the predecessor in title of the owners of the erven
in Schoemansville, the appellants had to prove that Mr Schoeman and the successive
owners of all the erven in Schoemansville actually used the foreshore on portion 28 to
obtain access to the Dam as if of right for a continuous period of 30 years prior to 1971.
This was an onerous burden that the evidence simply did not satisfy. And the evidence
told us nothing about the use of the foreshore on portion 29 by Mr Schoeman and the
successive owners of the erven in Meerhof. There was also no evidence as to the use
of the foreshore on portion 59 by the successive owners of erf 90, Meerhof.

[42] The appellants attempted to show that Mr Schoeman had erected a landing stage
on the foreshore in front of erf 463 for use in respect of his passenger boat enterprise.
The deponent for the fourth respondent said that the foreshore in front of erf 463 was
too steep for this purpose and that even when the water level of the Dam was as low as
16 percent of its capacity, there was no sign of such a landing stage or any remains
thereof. The first appellant disputed this, but the dispute cannot on the papers be
resolved in his favour. The only admissible piece of evidence in this regard was
contained in a contemporaneous letter by the Surveyor General (Mr Murray) to the
Secretary of Lands dated 10 April 1926. It made quite clear that Mr Schoeman had
erected landing stages on the adjacent portion 43. As I have said, the first appellant
commenced the use of erf 463 during 1964. There was no evidence of the actual use of
the foreshore in front of it prior hereto. In the result, the appellants did not show the
acquisition of the servitudes by prescription.

Second appellant
[43] It remains to deal with the declarator claimed by Ontspan Beleggings. The court
a quo erred in saying that no reliance was placed on rights that had emanated from the
Crown Grant. It therefore failed to consider Ontspan Beleggings’ case before it. As I
have demonstrated, the owner of portion 43 is clothed with a registered
praedial servitude of access to the Dam over the foreshore in front of it. In this court the
second respondent submitted that there had been no dispute as to the existence and
use of this servitude. Ontspan Beleggings countered the submission by correctly
pointing out that in the answering affidavit in the court a quo, the second respondent
had denied that the Crown Grant gave rise to a praedial servitude. The true position was
repeated in the replying affidavit. The second respondent did not dispute that in
argument in the court a quo it had adopted the stance reflected in the answering affidavit.

[44] In the light of the second respondent’s denial of Ontspan Beleggings’ rights, the
court a quo should have issued the declarator that it sought. However, in written and
oral argument in this court, the second respondent unreservedly recognised the
servitude attached to portion 43. Thus, there was no further need for the declarator that
Ontspan Beleggings had sought. It is trite that this court does not decide abstract or
academic issues and there is no reason why we should, in these circumstances,
nevertheless exercise a discretion to issue a declarator. The second respondent
acknowledged the rights of Ontspan Beleggings almost at the outset of the appeal.
There should, however, be an order that the second respondent is liable for the costs of
Ontspan Beleggings in the court a quo, and not the other way around, as the court a
quo ordered.

Conclusion
[45] There is a final matter that I should mention. It will be recalled that the
Cabinet Minute had approved the reservation of portions of the foreshore for landing
places for the general public and the owners of erven in Schoemansville respectively.
As I have said, parts of both these portions of the foreshore have been taken up by the
establishment of a bird sanctuary. I make no pronouncement on the enforceability of
these reservations, for two reasons. First, none of the appellants purported to represent
the general public in these proceedings and there was a lack of evidence in respect of
the current position in this regard. Second, in answer to the evidence of the appellants

that the remaining portion of the foreshore reserved for the Schoemansville title holders
was being used as envisaged in the Cabinet Minute, the second respondent said that it
was irrelevant to the issues in the case. In my view, this stance was correct, as no relief
was claimed solely on the basis of para 4 of the Cabinet Minute.

[46] In the result the appeal must be dismissed with costs, including the costs of two
counsel. The fourth respondent rightly did not press for punitive costs of the appeal. As
I have said, however, the order of the court a quo should be adjusted to provide that the
second respondent pay the costs of Ontspan Beleggings in the court a quo.

[47] The following order is issued:
The appeal is dismissed with costs, including the costs of two counsel.
The costs order of the court a quo is substituted with the following:
‘(a)
The first, third and fourth applicants are jointly and severally ordered to pay the
costs of the second respondent, including the costs of two counsel;
(b)
The second respondent is ordered to pay the costs of the second applicant,
including the costs of two counsel;
(c)
The applicants are jointly and severally ordered to pay the costs of the fourth
respondent, including the costs of two counsel.’

_______________________
C H G VAN DER MERWE
JUDGE OF APPEAL

APPEARANCES

For appellants:
J L Gildenhuys SC, with her W C Meyer

(Heads also prepared by E C Labuschagne SC)
Instructed by:

Couzyn Hertzog & Horak Attorneys, Pretoria

Symington de Kok Attorneys, Bloemfontein

For 2nd respondent:
M C Erasmus SC, with him H A Mpshe
Instructed by:

State Attorney, Pretoria

State Attorney, Bloemfontein

For 4th respondent:
W Trengove SC, with him K Hofmeyr and C Shongwe
Instructed by:

Bowman Gilfillan Inc., Sandton

McIntyre van der Post Inc., Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY - JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
Seale and Others v Minister of Public Works and Others (899/2019) [2020]
ZASCA 130 (15 October 2020)

From:
The Registrar, Supreme Court of Appeal
Date:
15 October 2020
Status:
Immediate

Please note that the media summary is for the benefit of the media and does not form
part of the judgment of the Supreme Court of Appeal.
Today the Supreme Court of Appeal (SCA) dismissed the appeal by the appellants
with costs including costs of two counsel and adjusted the order of the court a quo to
provide that the second respondent pay the costs of Ontspan Beleggings in the court
a quo.
The first appellant in this case is Mr Kingsley Jack Whiteaway Seale. He a director of
both the second appellant, Ontspan Beleggings (Pty) Ltd and the third appellant, HI
Frank Components (Pty) Ltd. The fourth appellant is the Schoemansville Oewerklub,
a voluntary association that acts in the interest of its members. 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).
The history of the matter spans more than a century. At the time when the
Union Government determined to construct the Dam, the Schoeman family owned

portions of the freehold farm Hartebeestpoort. The Crocodile River, which would be
the main source of water for the Dam, traversed the original farm.
Mr Johan Hendrik Schoeman and members of his family owned portions of the farm
Hartebeestpoort that would be submerged by the Dam. On 25 January 1918 the
Union Government and the owners of the portions of the farm Hartebeestpoort,
represented
by
Mr
Schoeman,
entered
into
an
agreement
of
sale
(the 1918 agreement). The Union Government purchased the portions of land that
would be submerged by the Dam from the Schoeman family. The boundary between
this land and the State land ran above the actual (fluctuating) waterline of the Dam.
Clause 3(k) (clause K) of the 1918 agreement provided for the retention of rights of
access to the Dam to Johan Hendrik Schoeman in his individual capacity or his
assigns, on certain three places which were to be mutually agreed upon by the
parties. The agreement never took place. Mr Schoeman nevertheless desired the
registration of these rights. Later, the Union Government during 1922 entered into a
notarial contract with Mr Schoeman (the notarial contract) which envisaged the
registration of a servitude. Mr Schoeman later persuaded the Union Government to
retransfer a portion of the land that had been transferred pursuant to the 1918
agreement, to him and the decision was recorded in Cabinet Minute 3125 (the
Cabinet Minute).
Part of the Cabinet Minute was given effect to by Crown Grant 67 of 1926 (the
Crown Grant). It was registered in the Deeds Office. In terms thereof portion 43 of
the farm Hartebeestpoort (portion 43) was transferred to Mr Schoeman and the
rights of access to the foreshore in front of portion 43 that had been approved therein
were registered as a servitude against the title deed of the servient tenement. The
first, third and fourth appellants (appellants) essentially claimed an order for the
registration of praedial servitudes of access to the Dam for purposes of boating and
fishing. The second appellant (Ontspan Beleggings), in essence, sought a declarator
that it is entitled to free use of the foreshore in front of portion 43. The SCA
emphasised that it is trite that a servitude is a right to use the property of another in a
particular manner. The right may be attached to a particular (dominant) tenement
(praedial servitude) or to a particular person (personal servitude). A personal right to
claim the registration of a servitude (praedial or personal) may, of course, arise from
an agreement. The appellants contended that the rights to obtain the registration of

the servitudes emanated from clause K on its own, or together with the notarial
contract. The SCA noted that 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. The SCA therefore held that clause K did not give rise to a right to
praedial servitude.
The SCA held that 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. The therefore
had to fail. 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.
In the result the appeal was dismissed with costs, including the costs of two counsel.
The order of the court a quo was adjusted to provide that the second respondent pay
the costs of Ontspan Beleggings in the court a quo.
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