Du Bois N.O. and Others v Ski Club of South Africa

The plaintiffs, as trustees of the Basie Geldenhuys Trust (owner of Farm Spekrivier), instituted an action alleging that the defendant, the Ski Club of South Africa (a voluntary association), was in unlawful possession of part of the farm located on the slopes of the Matroosberg Mountains. The defendant pleaded and entered a counterclaim, asserting it had acquired a personal servitude to access and use the land by acquisitive prescription in terms of section 2(1) of the Prescription Act 18 of 1943 and section 6 of the Act. The defendant alleged that since 1935 it had accessed the land for hiking, skiing, overnight accommodation, and related activities; had installed structures including a ski-lift and buildings; and had done so openly, without force, nec precario, and as if entitled, for a continuous period of at least 30 years between 1957 and the date of the plea. The defendant sought a declaratory order that it had a personal servitude in perpetuity. The plaintiffs raised exceptions against the counterclaim on grounds that it failed to disclose a cause of action, was bad in law, and was vague and embarrassing.

• Whether the defendant's counterclaim for a personal servitude in perpetuity discloses a cause of action or is bad in law, given that South African law limits personal servitudes held by juristic persons to a maximum of 100 years or until dissolution.
• Whether the defendant's counterclaim is vague and embarrassing for failing to plead the inception date of the alleged personal servitude with sufficient clarity and specificity.

1. The exceptions are upheld with costs. 2. The defendant is given leave to amend its counterclaim within 20 days of the order. 3. Should the defendant fail to amend its counterclaim within the stated period, the plaintiffs are granted leave to apply on the same papers, duly supplemented if necessary, for the dismissal of the defendant's counterclaim.

A personal servitude held by a juristic person cannot be perpetual in South African law; it is limited to a maximum duration of 100 years or until the dissolution of the juristic person, whichever occurs first. Accordingly, a claim seeking a declaratory order for a personal servitude in perpetuity held by a juristic person is bad in law and fails to disclose a cause of action. Furthermore, in a claim based on acquisitive prescription of a personal servitude, the inception date of the servitude is a necessary averment that must be pleaded with specificity, as it determines the lifespan of the servitude and is essential for the opposing party to know the case it has to meet.

The court noted that the defendant argued the case called for the development of the common law, but emphasised that there must be factual allegations justifying a departure from the law as it stands. The court also expressed a sincere apology for the time taken to deliver the judgment. The court made observations about the importance of precise pleading to avoid trial by ambush, and that a party cannot wait until trial to reveal unpleaded material factual averments.

This case reaffirms the well-established common law principle in South African property law that personal servitudes held by juristic persons are inherently limited in duration and cannot be perpetual, distinguishing them from praedial servitudes. It also highlights the pleading requirements for claims based on acquisitive prescription of servitudes, particularly the necessity of pleading the inception date with specificity. The judgment serves as an important reminder of the standards of clarity and particularity required in pleadings under Rule 18(4) and Rule 23 of the Uniform Rules of Court.