REPUBLIC OF SOUTH AFRICA
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
Case number: 286/99
In the matter between:
HENRI SMITH
Appellant
and
VICTOR EDWARD MUKHEIBIR
1st Respondent
JOHN CHRISTOPHER BOWMAN
2nd Respondent
GUTSCHE FAMILY INVESTMENTS
(PTY) LIMITED
3rd Respondent
CORAM:
SMALBERGER ADCJ, HARMS, STREICHER,
MPATI JJA and BRAND AJA
HEARD:
23 FEBRUARY 2001
DELIVERED:
23 MARCH 2001
Servitude - of road - Subdivision of dominant tenement - whether owner of subdivided portion
has a right additional to that of dominant tenement before subdivision.
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JUDGMENT

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MPATI JA:
[1] This appeal concerns the interpretation of a condition relating to a servitude of
road and route incorporated in a deed of transfer.  By deed of sale signed by appellant
(as seller) and  first and second respondents (as purchasers) during September 1996
the appellant sold to them the member’s  interest in Henfri Beleggings CC (“the close
corporation”) for the sum of R405  000,00.  Appellant was the sole member of the
close corporation which in turn is the owner of immovable property described as Erf
5027, Portion of Erf 4113 Walmer, in the Municipality and Division of Port Elizabeth
(“Erf 5027").
[2] Prior to its subdivision, which produced Erf 5027 and the remainder of Erf
4113, Erf 4113 was “subject and entitled to a reciprocal general servitude of road and
route of which may be agreed upon from time to time by the registered owners over
and in favour of Erf 4112 Walmer ...”.  The remainder of Erf 4113 and Erf 5027 are

both continguous to Erf 4112.
[3] Erf 5027 is held by the close corporation under Deed of Transfer No T70538/93
and the said servitude was carried over in the following terms:
“B.  SUBJECT FURTHER and ENTITLED to the benefits in terms of
the endorsement dated 12 December 1988 on certificate of registered title
no T72406/88, reading as follows:
‘By virtue of Deed of Transfer no T72410/88 the within property
is subject and entitled to a reciprocal general servitude of road and
route of which may be agreed upon from time to time by the
registered owners and in favour of Erf 4112 Walmer, meas 6, 2201
ha, held by Deed of Transfer no T72410/88.’”
[4] Subsequent to the sale of the member’s interest and on 6 December 1996, first
and second respondents made a payment to appellant in the sum of R236 546,14.
Appellant accepted the payment on account.  First and second respondents failed to
pay the balance of the agreed purchase price and appellant instituted action for
payment thereof.  They counterclaimed for payment of the sum of R168 453,86.  They
alleged in essence that contrary to a  term of the agreement of sale, viz that Erf

5027was one to which there was reasonable and appropriate access, there was no such
access, with the result that first and second respondents had to construct an access
to Erf 5027at a cost of R168 453.86 (the balance of the purchase price which they had
withheld).  In his plea in reconvention appellant pleaded inter alia as follows:
“3.6
Both Erf 4113 and Erf 5027 have, in terms of their respective
Deeds of Transfer, a servitude which entitles them access over Erf
4112 [the Walmer Park Shopping Centre parking lot] as a
reciprocal General Servitude of road and route.
3.7
The Close Corporation owner of Erf 5027 has access accordingly
to the aforesaid parking ground and from the parking ground to
one or other of the surrounding public roads.
3.8.1 Erf 5027, accordingly, was a property to which there was
reasonable and appropriate access.”
[5] The only issue which the Court a quo was required to determine in terms of
Rule 33(4) of the Uniform Rules of Court was formulated as follows:
“Whether the condition incorporated in deed of transfer no 70538/93 in
respect of the property Erf 5027 (a portion of Erf 4113), confers on Erf
5027 as dominant tenement an enforceable right of road over Erf 4112 as
servient tenement.”

[6] After it had heard argument on behalf of appellant and first and second
respondents the Court a quo (Ludorf  J) directed that third respondent be joined
because of its interest in the matter as owner of Erf 4112.  Third respondent
consequently filed a pleading in which it is alleged that third respondent “has complied
with the terms of the reciprocal general servitude of road and route between Erf 4112,
Walmer, and Erf 4113, Walmer, more particularly in that such access as is envisaged
in such servitude has been agreed upon and granted as between the owners of the said
respective erven”.  Third respondent further denied that the condition incorporated in
Deed of Transfer No 70538/93 in respect of the property confers on the property, as
dominant tenement, another right of way over Erf 4112 as servient tenement.
[7] Ludorf J answered the question posed in the negative but granted appellant leave
to appeal to this Court.
[8] The question is in my view incomplete.  This is evidenced by the concession
made by first and second respondents’ counsel in his heads of argument that Erf 5027
has a right of access enforceable against Erf 4112 as servient tenement, but that the

condition in the title deed does not confer any additional right to that which it originally
conferred upon Erf 4113 before subdivision.  It was accordingly contended that Erf
5027 has to exercise its right of access over the remainder of Erf 4113 and then onto
the agreed road and route over Erf 4112.  These, in essence, were also the contentions
advanced on behalf of third respondent.
[9] The position in our law is that when a dominant tenement is subdivided, each
portion retains the original dominant tenement’s servitudal rights.  Each portion can
exercise a right of access over the servient tenement and, in the absence of any
agreement to the contrary, each owner can trek over that portion of the original
dominant tenement, which, owing to the division, now lies between it and the servient
tenement.  (See D 8.3.23(3); Van Leeuwen RHR 2.21.12; Louw v Louw 1921 CPD
320 at 322; Briers v Wilson and Others 1952 (3) SA 423 (C) at 439H.)  In Louw’s
case the facts, briefly, were:  A farm, in favour of which there was a right of way over
a neighbouring farm, was divided into two portions in such a manner that only one of
such portions was adjacent to the neighbouring farm.  Nothing was said in the title

deeds of the divided portions as to the right of way.  In order to reach the
neighbouring farm, the purchaser of the portion remote to it drove his cattle over the
portion adjacent to the neighbouring farm and was sued by the owner of such adjacent
portion for damages for trespass.  The Court held that he was entitled to a right of way
over such adjacent portion for the purpose of reaching the neighbouring farm, and was
not liable to pay damages for the alleged trespass.
[10] Counsel for the appellant submitted that the implication of the Louw judgment
is that if the subdivision which had originally formed part of the dominant tenement
had not been completely cut off from the servient tenement, it would have had a right
of way directly over the servient tenement rather than having to cross the other
subdivision in order to gain access to it.  He argued further that if the servitude is not
so drafted as to confine the right of way over the servient tenement to a single route,
which, once chosen, is the only route along which the servitude may be exercised, then
the subdivisions must be entitled to exercise their individual rights of way across the
servient tenement.  To adopt an arbitrary rule that the right of way must invariably

follow the route already chosen by one of the other subdivisions to which it was
attached may, so the argument proceeded, render the right valueless.  To illustrate this
point counsel referred to the facts of the present matter where, because of the
topography and in order to follow the path of the route chosen in respect of the
original Erf 4113, the new owners had to have a ramp built at enormous cost, whereas
access could have been obtained by merely driving across the boundary between Erf
4112 and Erf 5027 at a point where the two sites are level with each other.
[11] In deciding the issue before him Ludorf J held that the clear and ordinary
meaning of the words used in what he termed “the preamble” to the condition quoted
in the title deed is that the property acquires the very same rights previously enjoyed
by Erf 4113.  The learned judge also held that it “is ... significant that what follows on
the preamble is enclosed in inverted commas” and that that “indicates that the right of
way referred to is the original right of way and not a new right”.  With respect to the
learned judge the emphasis on the inverted commas was misplaced.  To my mind the
inverted commas merely signify a direct quotation from another title deed, that of Erf

4113 before the subdivision.
[12] What must be remembered  is that the servitude in favour of Erf 5027does not
found its origin in an agreement between the present owner of Erf 5027and the owner
of Erf 4112 but in the original grant.  In interpreting the deed regard must therefore be
had to the wording of the original condition.  That a servitude in favour of Erf 5027
exists is not in issue.  What is, is whether the owner of Erf 5027is entitled to select an
additional  route over the servient tenement separate from the existing one that runs
from the remainder of Erf 4113.
[13] Appellant’s counsel submitted that the servitude in question is a general
servitude which does not specify a route.  That being so the owner of Erf 5027 was
possessed of a right of way which it was entitled to exercise in a way which was most
practical and convenient for itself, provided that in the exercise of that right it caused
the servient tenement the least amount of inconvenience and loss possible.
[14] The servitude granted in favour of the original Erf 4113 is a reciprocal general
servitude of road and route “of which may be agreed upon from time to time” by the

registered owners of erven 4112 and 4113.  It could accordingly only come into being
if and when its route was so defined.  (Nach Investments (Pty) Ltd v Yaldai
Investments (Pty) Ltd and Another 1987 (2) SA 820 (A) at 832 C-D.)  In that case
Hefer JA remarked that where a general servitude is intended and there is reference in
the agreement to a future agreement in respect of the route then what is envisaged is
an initial general right which may be converted to a specific one by subsequent
agreement (at 831 G-H).  In the present matter a route was indeed so defined.  A
definite servitude was therefore constituted which could only be altered by mutual
consent (Gardens Estate Ltd v Lewis 1920 AD 144 at 150.)  However, even with a
general servitude (simpliciter) the grantee (dominant tenement) may select a route but
must do so civiliter modo ( for the meaning of which see Kakamas Bestuursraad v
Louw 1960 (2) SA 202 (A) at 217 D-E).  Once the grantee has exercised his election
he cannot afterwards change it unilaterally (Gardens Estate Ltd, supra, at 150).
[15] In the present matter Erf 4113 was entitled to one road and the route was agreed
upon between the dominant and servient tenements before the subdivision.  Mere

subdivision of the dominant erf could not have increased the number of roads or the
route of the existing road.  To hold otherwise would be to grant to a subdivision a
greater right to that which the dominant tenement enjoyed before it was subdivided.
In my view the Court a quo correctly answered the question posed.
[16] The appeal is dismissed with costs.
L MPATI JA
CONCUR:
SMALBERGER ADCJ)
HARMS JA)
STREICHER JA)
BRAND AJA)