Simplex (Pty) Ltd v Van der Merwe and others NNO 1996 (1) SA 111 (WLD)

Simplex (Pty) Ltd v Van der Merwe and others NNO 1996 (1) SA 111 (WLD)

Issue: Whether a clause in a notarial deed that creates a reciprocal obligation between two neighboring properties is a servitude.

Facts:

Simplex (Pty) Ltd and Van der Merwe and others NNO were the owners of two neighboring properties. The notarial deed that created Van der Merwe and others NNO's property contained a clause that stated that Van der Merwe and others NNO would not be allowed to develop their property in a way that would interfere with Simplex (Pty) Ltd's enjoyment of its property. The clause also stated that Van der Merwe and others NNO would be required to contribute to the cost of maintaining the road that separated the two properties.

Simplex (Pty) Ltd argued that the clause in the notarial deed created a servitude of non-interference and a servitude of maintenance in its favor. Van der Merwe and others NNO argued that the clause did not create any servitudes.

Key Facts:

• Simplex (Pty) Ltd and Van der Merwe and others NNO were the owners of two neighboring properties.
• The notarial deed that created Van der Merwe and others NNO's property contained a clause that stated that Van der Merwe and others NNO would not be allowed to develop their property in a way that would interfere with Simplex (Pty) Ltd's enjoyment of its property and that Van der Merwe and others NNO would be required to contribute to the cost of maintaining the road that separated the two properties.
• Simplex (Pty) Ltd argued that the clause in the notarial deed created a servitude of non-interference and a servitude of maintenance in its favor.
• Van der Merwe and others NNO argued that the clause did not create any servitudes.

Court's Decision

The Transvaal Provincial Division (TPD) held that the clause in the notarial deed created a servitude of non-interference and a servitude of maintenance in Simplex (Pty) Ltd's favor. The TPD reasoned that the clause created a real right in Simplex (Pty) Ltd's favor that was attached to its property and that was enforceable against Van der Merwe and others NNO's property.

The TPD also held that the clause met all of the requirements of a servitude. The TPD held that the clause was a reciprocal obligation between two neighboring properties, that it was for the benefit of the dominant tenement (Simplex (Pty) Ltd's property), and that it was a burden on the servient tenement (Van der Merwe and others NNO's property).

Application of the Law to the Facts of the Case

The TPD applied the law to the facts of the case and found that the clause in the notarial deed created a servitude of non-interference and a servitude of maintenance in Simplex (Pty) Ltd's favor. The TPD ordered Van der Merwe and others NNO to comply with the terms of the servitudes.

Conclusion

The TPD's decision in Simplex (Pty) Ltd v Van der Merwe and others NNO 1996 (1) SA 111 (WLD) is a significant case because it clarifies the law relating to the creation of servitudes. The decision emphasizes that a servitude can be created by any agreement between the owners of two neighboring properties, even if the agreement is not registered in the Deeds Office.

The decision also provides guidance to landowners and servitude holders on the factors that the court will consider when determining whether a clause in a notarial deed creates a servitude.