Legal Matters Sponsored by STBB
By Gert Minnaar, STBB
The title deed for a piece of land on which the owner thereof plans to establish a township lists all the title conditions to which the land is subject and entitled to.
Gert Minnaar, practising conveyancer at the Illovo branch of STBB Attorneys and serving SAARDA committee member
If there are no title conditions noted against the title deed for the land the registered owner has absolute ownership which entitles the owner to use, possess and alienate the land without having to consider due limitations in the exercise thereof.
If the land is subject to a servitude the owner of the land enjoys diminished ownership and his ownership can only be exercised subject to the rights of the beneficiary of such servitude. The servitude may, or may not, depending on the nature and situation thereof, have an impact on the layout of the proposed township because of the way it restricts the use of this land by the township applicant.
Definition of a servitude
Johannes Voet, the foremost institutional writer of Roman-Dutch law, defined a servitude as follows:
“A servitude is a right belonging to one person, in the property of another, entitling the former to exercise some right or benefit in the property or to prohibit the latter from exercising one or the other of his normal rights of ownership.”
In principle there are three main types of servitudes, namely:
- praedial servitudes, where the beneficiary of the servitude is the owner of a specific land portion.
- personal servitudes, where the beneficiary of the servitude is a specific person or entity.
- public servitudes, where the public is the beneficiary of the servitude
A servitude which gets registered in favour of Eskom as its beneficiary is thus a personal servitude because it gets registered in favour of a specific entity.
Acquisition of a servitude by Eskom
This servitude is usually created by agreement between the landowner and Eskom, and the servitude can be described in general terms without a specific route, or it can describe the specific route which the pylons and electrical power lines will follow over the owner’s land.
This agreement is then converted to a servitude which gets registered against the title deed of the land affected by it, and as and when the land gets sold and transferred this title condition gets carried forward to each new title deed.
Eskom servitudes registered in general terms
The main characteristic of this servitude is that it confirms the right of Eskom to this servitude without describing the route of the servitude.
“By Notarial Deed Number K2935/1985S the right has been granted to ESKOM to convey electricity over the property hereby conveyed together with ancillary rights, subject to conditions, as will more fully appear on reference to the said Notarial Deed.”
The route of this servitude is then only determined later after the registration of the Notarial Deed of Servitude against the title deed of the land at the Deeds Office took place. On approval of the servitude diagram by the Surveyor-General for the then determined route Eskom will go ahead and register a Notarial Deed of Route Determination at the Deeds Office which gets noted against the initial Notarial Deed of Servitude where this servitude was first created in general terms.
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This route determination is not recorded as a title condition against the title deed of the land. The conveyancer who prepares the conveyancer’s certificate for the land on which the proposed township will be established must investigate if the route of the servitude was determined later after the registration of the general servitude by checking this initial Notarial Deed of Servitude for any endorsements regarding the route determination.
When the land then gets transferred, after the registration of such route determination, the title condition in the new Deed of Transfer must be amplified to include the reference to the route determination:
“By Notarial Deed Number K2935/1985S the right has been granted to ESKOM to convey electricity over the property hereby conveyed together with ancillary rights, subject to conditions, as will more fully appear on reference to the said Notarial Deed, the route of which has been determined by Notarial Deed of Route Description K4396/1994S with the centre line thereof indicated by the lines ABCD and EFG on both sides 11 m wide on diagram SG No A6767/1989 annexed thereto, as will more fully appear from the said Notarial Deed.”
This then identifies the exact part of the land which is affected by the Eskom servitude where the land owner’s rights in respect of his land are reduced or diminished.
Eskom servitudes registered with predetermined routes
In this instance the exact part of the land affected by the servitude is identified at the outset leaving no uncertaintity as to which part of the land the owner enjoys his property rights subject to the rights of the beneficiary of the servitude.
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With the route determined at the start when the servitude agreement is signed and the servitude diagram approved by the Surveyor-General, the servitude in favour of Eskom is registered from the beginning with a complete reference to the servitude area as depicted on the servitude diagram:
“By virtue of Notarial Deed of Servitude No 1454/1961S the right was granted to ESKOM to convey electricity over the withinmentionded property and to construct and maintain a transformator, as indicted by the lines ABC, EF, HJKL, DE and GH and the figure NOPR on servitude diagram SG No 5092/1959, together with ancilllary rights, as will more fully appear from reference to the said Notarial Deed.”
The effect of the ancillary rights referred to in Eskom servitudes
In the wording of the Eskom servitudes there is always a reference that the servitude rights are enjoyed together with ancillary rights. In the Collins English Dictionary, it is stated that “ancillary” means “additional to something else” which in the case of a servitude must then mean the rights additional to the main servitude rights.
There seems to be uncertainty as to the nature and effect of these ancillary rights, but the final answer to this question relies on the interpretation of the servitude agreement and the registered Notarial Deed of Servitude in terms of which the servitude was registered.
In Pieterse vs Du Plessis 1972 (2) SA page 597 and 599 it was ruled that a servitude agreement must be interpreted strictly and in a manner less burdensome to the owner of the servient tenement. This principle is subject to the qualification that the nature and extent of the burden must be determined according to the meaning given to the agreement in terms of which the servitude was created.
These ancillary rights then seem to be the right to perform the following actions within the boundaries of the designated servitude area on the land, but always depending on the contents of the servitude agreement:
- enter upon the land to construct, erect, operate, use, maintain, repair, re-erect, alter or inspect the structures, works, appliances, conductors or cables;
- erect structures and works;
- use existing roads giving access to the land or roads running over the land to get access to the servitude area;
- remove any trees, bush, material, grass or structures within the servitude area and the right to cut or trim any tree in this area;
- utillise various conductors, installations and apparatus in the servitude area
- every ancillary right necessary or convenient for the proper exerise of the servitude
The impact of an Eskom servitude, registered in general terms, on a township layout
If the location and route of the servitude have not been determined yet since the date of registration of the servitude in general terms and its exact position can thus not be plotted yet, Eskom must be approached to issue a letter confirming if the proposed township is affected or not by this servitude due to its locality.
If Eskom confirms that the route of the servitude is not determined yet this title condition must be carried forward to the township title for this township and will also be carried forward to the title deeds of all the erven in the township.
If the route of the servitude is determined by that time and the servitude affects the township area through the situation thereof it will be required to register a notarial deed of route determination servitude, prior or simultaneously, with the opening of the township register for the proposed township to update the records of the Deeds Office regarding the exact location of this servitude. This title condition must then be carried forward to the township title for this township, accommodated on the layout plan for the township and the conditions of establishment must indicate which erven and streets in the township are affected by this servitude.
However, if the servitude does not affect the township area through its situation this title condition must still be carried forward to the township title for this township only because of the reference to ancillary rights. The conditions of establishment shall then indicate that this title condition shall not be carried forward from the township title to the title deeds of the erven in this township.
The impact of an Eskom servitude, for which the location or route has been determined, on a township layout
If the physical location or route of the electrical powerlines can be plotted on the affected land portion the land surveyor must establish if the area affected by the servitude falls within the proposed township establishment area and issue a servitude certificate accordingly.
The title condition relating to this servitude shall then be carried forward to the township title for the proposed township. If the township establishment area is affected by the servitude through the situation thereof it must be accommodated in the lay out plan for the township and the conditions of establishment must indicate which erven and streets are affected by it, if applicable. However, if the township establishment area is not affected by the servitude through the situation thereof the title condition shall not be carried forward to the title deeds for the erven in of the Township
Conclusion
If Eskom servitudes are registered against the land on which an owner wishes to establish a township it is essential that a proper investigation is carried out to determine the current status of these servitudes so that the impact thereof on the layout of the proposed township can be evaluated and addressed in the correct manner.
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