Berzack v Huntrex 277 (Pty) Ltd and Others

Ms Margot Berzack owned the remainder of erf 380, Constantia. She subdivided the property in 1982 and sold the subdivided portion (erf 8478) to Mr Wellens in 1983. Because part of her established garden fell within the subdivided portion, she reserved rights over a 20-metre wide strip of the sold land by registering a servitude in favour of the remainder of erf 380. The servitude granted rights to maintain and enjoy the garden, prohibited certain fencing, and allowed access. The servitude was registered as a praedial servitude and endorsed on successive title deeds. In 2017, Huntrex 277 acquired erf 8478 and challenged the nature of the servitude. The Western Cape High Court declared the servitude to be a personal servitude of usus, ordered rectification of the title deed, and dismissed Ms Berzack’s counter-application for rectification or acquisition by prescription. Ms Berzack sought leave to appeal to the Supreme Court of Appeal.

Leave to appeal was granted. The appeal was upheld with costs, including the costs of two counsel. The High Court’s order was set aside and replaced with an order dismissing Huntrex 277’s application with costs.

The case clarifies the distinction between praedial servitudes and personal servitudes of usus in South African property law, particularly in relation to so-called ‘garden servitudes’. It reaffirms the Endumeni approach to interpreting servitude deeds and confirms that utilitas is not limited to traditional rural or agricultural benefits but includes modern economic and amenity-based advantages. The judgment provides important guidance on the registrability of servitudes under the Deeds Registries Act.