To determine whether a notarial cession of a personal servitude must be created bilaterally or unilaterally, the provisions of the Deeds Registries Act 47 of 1937 must be consulted. The general rule is found in section 65 which provides that, unless another law provides otherwise, a personal servitude may be created by means of a deed executed by the owner of the land encumbered thereby and the person in whose favour it is created, i.e. bilaterally. However, to this general rule there are the following exceptions:
Servitude in favour of general public
Where a servitude is created in favour of the general public or all or some of the owners or occupiers of erven of lots in a township, the registrar may dispense with the bilateral execution, if it is in his/her opinion impracticable to require such persons to execute the notarial deed (see first proviso to section 65).
Cession of usufruct, usus and habitatio
Where a personal servitude of usufruct, usus or habitatio is being ceded to the owner of the land by the holder of such servitude, and the deed does not impose any obligation upon the owner of the land, such cession can be unilaterally entered into (see regulation 61(2) read in conjunction with section 66).
During the 2013 Conference of Registrars the conference was confronted with the question as to the interpretation of regulations 61(2). Conference held that the unilateral execution of a cession of usufruct, usus and habitatio will only be permitted if such servitude is ceded in favour of the land encumbered thereby (see RCR 24 of 2005 as confirmed by RCR 3 of 2013). In all other cases personal servitudes, irrespective of its nature must be ceded in terms of a bilaterally executed notarial deed, subject to the exception contained in section 65, already addressed.
The above conference resolution which has now shed more light on the interpretation of regulation 61(2), has definitely changed the existing practice in many of the Deeds Registries and should be strictly adhered to.