Royal Hotel

20 September 2012

Neutral citation: Royal Hotel v Simon NO  (713/11) [2012] ZASCA 118 (18 September 2012)
Coram: Heher, Cachalia, Malan, Tshiqi and Pillay JJA
Heard: 28 August 2012
Delivered: 18 September 2012

This appeal concerns the interpretation of a servitude, which although executed simultaneously with the registration of transfer did not accord with the terms embodied in the deed of sale. Basically the appellant wanted to erect a building over a substantial portion of a servitude (parking) area and the respondents did not agree.

[12]The task of the court is to determine the intention of the parties to the agreement that created the servitude. In so far as the language used by them is clear and unambiguous effect must be given to it. But even clear expression can benefit from an appreciation of its context in the written agreement against the background of circumstances relevant to its conclusion provided that the plain meaning is not thereby contradicted or varied.

[13] What principles must one apply in interpreting the servitude, recognising that it is, in essence, only a contract to achieve a particular end? It is unnecessary to rehash all the conflicting approaches. They are adequately debated by my colleague Wallis JA in his article, What’s in a word? Interpretation through the eyes of ordinary readers 127 SALJ (2010) 673, and do not give rise to controversy in this appeal.

[14] It is sufficient for present purposes to examine the combined effect of the relevant facts present to the minds of the parties at the time of contracting, and the language adopted by them in the context of their contract as a whole. These are the signposts to their common intention and, as will become apparent, they point to a single destination.

The evidence of the surrounding circumstances pointed to both the dominant and servient owners appreciating the need for the dominant portion to survive and prosper as a business and that this was dependent on keeping the parking area. As did a proper construction of the agreement, based on the structure and language employed by the parties.

The appeal was accordingly dismissed with costs.

Full judgment

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