Eden Crescent Share Block Ltd v Olive Marketing CC and Others

Eden Crescent Share Block Ltd owned erf 11496, Durban, and Olive Marketing CC owned the adjoining erf 12424. Both properties were previously owned by the Ethekwini Municipality. For decades, the Eden property had provided parking for patrons of the Olive property pursuant to zoning requirements, leases, and town-planning conditions. In 1994, Eden purchased the Eden property from Ethekwini subject to an obligation to create a parking servitude for at least 250 parking bays in favour of the Olive property. Transfer occurred in April 1996, while the servitude was registered in February 1997. Eden later refused to provide parking, alleging that the servitude was invalid because it was vague and because statutory approvals under the Share Block Control Act and the Housing Development Schemes for Retired Persons Act had not been obtained. Olive successfully enforced the servitude in the High Court. Eden, Olive, and Ethekwini each sought leave to appeal adverse aspects of the High Court order.

Eden Crescent Share Block Ltd’s application for leave to appeal was dismissed with costs. Olive Marketing CC’s and Ethekwini Municipality’s conditional applications for leave to appeal were also dismissed, with costs awarded against them in favour of the respective opposing parties.

The case clarifies the distinction between general and specific servitudes in South African law and confirms that a servitude need not specify exact locations to be valid if the parties intended a general servitude. It also provides authoritative guidance on when the registration of a servitude does or does not constitute an alienation for purposes of the Share Block Control Act and the Housing Development Schemes for Retired Persons Act.