Kruger v Joles Eiendom (Pty) Ltd

The plaintiff (Kruger) and defendant (Joles Eiendom) owned adjoining properties (Erf 3765 and Erf 548 respectively) in Dorp Street, Stellenbosch. Between the properties was a passage 0.95 metres wide and 10.39 metres long, running along their common boundary. Reciprocal servitudes were registered over corresponding portions of each property providing that the passage "shall be for the common use of" both properties. In 1966, the owner of the defendant's property (Mr Scheiffer) built a wall 2.7 metres high blocking access from the passage to Erf 548. Between 1966 and 1968, the plaintiff installed a door at the Dorp Street entrance to the passage, which he kept locked. In 1968, the plaintiff also built a wall encroaching slightly onto the defendant's property (the "extended passage" area north of the servitude area), constructed a drain running under this area to Dorp Street, and paved both the passage and extended passage. The plaintiff acquired Erf 3765 in 1967 and controlled access to the passage and extended passage area for over 30 years. The plaintiff claimed that the servitude over his property had been extinguished by prescription and that he had acquired part of the defendant's property (the extended passage) by acquisitive prescription.

• How should the servitude granting 'common use' of the passage be interpreted?
• Is evidence of subsequent use by parties admissible to interpret an ambiguous servitude when the parties who constituted the servitude are not the ones giving evidence?
• What is the proper approach to interpreting an ambiguous servitude?
• Had the servitude over the plaintiff's property been extinguished by prescription under section 7(1) of the Prescription Act 68 of 1969 due to non-exercise for 30 years?
• Had the plaintiff acquired the extended passage portion of the defendant's property through acquisitive prescription under section 1 of the Prescription Act 68 of 1969?

1(a) The appeal succeeds, with costs. (b) The order of the full court is set aside and the following order substituted: 'The appeal is dismissed, with costs.' 2. The cross-appeal is dismissed, with costs.

1. Where a servitude is ambiguous and evidence of surrounding circumstances at the time of its constitution is unavailable, the servitude must be interpreted restrictively applying the principle that servitudes, being limitations on ownership, should be accorded an interpretation which least encumbers the servient tenement (following Voet, Carpzovius, and Pieterse v Du Plessis). 2. A servitude granting 'common use' of a narrow passage without further definition or description should be interpreted as limited to use as a passageway for access, not for any lawful purpose. 3. Evidence of how a servitude was used by persons other than the parties who constituted it is inadmissible for purposes of interpreting the servitude. 4. A servitude is extinguished by prescription under section 7(1) of the Prescription Act 68 of 1969 where it has not been exercised for an uninterrupted period of 30 years. 5. For acquisitive prescription of land under section 1 of the Prescription Act, the claimant must possess the property openly, with the intention to possess as owner, and exercise physical control over it for an uninterrupted period of 30 years.

The court noted that the servitudes may have originally been imposed by the local authority to give access to outside lavatories for the primary purpose of removing 'night soil', though there was no evidence to confirm this. The court also observed that the fact that the properties now have commercial buildings on them (as noted by the full court) is irrelevant to interpreting the servitude, which must be interpreted according to circumstances at the time of its creation. The court found the evidence of witness Gideon Jacobs confusing and contradictory, casting doubt on his reliability due to admitted past confrontations with the plaintiff.

This case establishes important principles in South African property law regarding the interpretation of servitudes and the application of prescription. It affirms the restrictive approach to interpreting servitudes, particularly where ambiguity exists, following the principle that servitudes should be construed to least encumber the servient tenement. The case clarifies when evidence of subsequent conduct may be admissible in interpreting servitudes (only when it relates to the actual parties who constituted the servitude). It also demonstrates the practical application of both extinctive prescription (section 7(1) of the Prescription Act) in relation to servitudes and acquisitive prescription (section 1 of the Prescription Act) in relation to land. The case is significant for property practitioners in determining the scope of servitudes, particularly where the language used is general or ambiguous, and in advising on prescription claims.