N’Wandlamharhi Communal Property Association and Another v Westcott and Others

The first appellant, a communal property association, became the registered owner of the MalaMala Private Game Reserve, including two farms known as Charleston North and Charleston South, following a land restitution process. Historically, these farms were owned by companies whose shares were held by family trusts linked to the respondents and by MalaMala entities. Shareholders’ agreements concluded in 1986 granted certain family members (the respondents) rights of access, viewing, and exclusive occupation of camps situated on the Charleston properties. These agreements also regulated share disposals and contemplated termination of the rights in certain circumstances. In 2010, MalaMala entities acquired all the shares in the Charleston companies, and in 2013 the land was transferred to the first appellant. After management of the reserve changed, the appellants denied the respondents further access, prompting litigation to enforce the alleged occupation and viewing rights.

The appeal was upheld with costs. The order of the full court was set aside and replaced with an order dismissing the respondents’ appeal, with costs including the costs of two counsel.

The case clarifies the strict requirements for establishing servitudal rights or rights to claim registration of servitudes in South African law, particularly the necessity of a clear intention to bind successors in title. It reaffirms the presumption against servitudes, the distinction between personal and real rights, and limits the application of the doctrine of notice where the underlying personal rights have terminated.