Eskom Holdings SOC Ltd v Norton

The case concerned the interpretation of a notarial deed of servitude registered in 1958 over property now owned by Ms Lindy Norton. The servitude entitled Eskom to convey electricity across the property in return for an annual rental payment. Norton acquired the property in July 2010 but did not formally present her title deed to Eskom as contemplated in clause 9 of the deed. Despite this, Eskom acknowledged her ownership in correspondence and made her an offer to capitalise the servitude rental. Eskom thereafter failed to pay the annual servitude rental to Norton, resulting in arrears. Norton gave written notice in terms of clause 3 of the deed of her intention to cancel the servitude due to non-payment. Eskom failed to remedy the breach within the notice period and attempted late payment after cancellation. Norton rejected the payment and applied to the High Court for confirmation that the servitude had been validly cancelled and for removal of Eskom’s infrastructure. The High Court granted the relief, and Eskom appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, including the costs of two counsel. The High Court order confirming cancellation of the servitude and directing removal of Eskom’s infrastructure stood.

The case clarifies the interpretation of protective clauses in servitude agreements, particularly that such clauses cannot be relied upon where their underlying purpose has been satisfied. It affirms that a servitude holder with actual knowledge of a change in ownership cannot avoid contractual obligations by relying on formalistic requirements. The judgment is significant for property law and for public utilities holding registered servitudes.