Royal Hotel Riversdal (Pty) Ltd v Simon NO and Another

The respondents, trustees of the Simon Family Trust, sold the northern portion of Erf 5372, Riversdale (Portion A) to the appellant, Royal Hotel Riversdal (Pty) Ltd, retaining the southern portion (Portion B). The deed of sale created a praedial servitude over Portion A in favour of Portion B, including rights relating to access and parking. Clause 13.1.3 of the agreement entitled buses and trucks visiting Portion B to park on a gravel area on Portion A, as was the existing practice. In 2007 the appellant proposed erecting a free-standing building covering about 20% of this gravel area. The respondents objected, contending that this would infringe the servitude. The appellant sought a declaratory order that the building would not breach the servitude, alternatively rectification of the registered servitude to align with the deed of sale.

The appeal was dismissed with costs. The order of the Full Court was amended to include an order rectifying the registered servitude in terms of paragraph 2.1 of the notice of motion, and otherwise dismissing the application with costs.

The case is significant for clarifying the interpretation of praedial servitudes in South African law, particularly the need to give effect to the commercial purpose and practical utility of a servitude. It confirms that a servitude must confer a real and lasting benefit on the dominant tenement and cannot be interpreted in a manner that renders it nugatory.