WESTERN CAPE HIGH COURT, CAPE TOWN

Cass No. 12423/2Q07

In the matter between:
MARIA VAIRETTI						Applicant

and
FRANCESCA ZARDO N.O.					First Respondent

CARCLA ZARDO N.O.						Second Respondent

GLYN ERIC WILLIAMS N.O.					Third Respondent

JUDGMENT DELIVERED THIS 12th DAY OF APRIL2010

NC ERASMUS J,

INTRODUCTION
[1] This matter concerns the interpretation of a provision in the trust deed of the German Trust {'the trust'). The relevant provision provides as follows:

[3] The dcnor of the trust is, at least nominally on the face of the trust deed, one Mr Johannes Du Plessis ('Du Plessis). Du Plessis was at the relevant time the attorney of the (now) late Mr Emilio Gennari ('Gennari'). It is . common cause on the papers {or at least not in dispute) That the trust was established at the instance of Gennari, for estate planning purposes. In any event, both parties have in their papers correctly adopted the position that the founder of the trust was in reality Gennari (not Du Plessis).

[5] The first and second respondents are South African citizens. The first respondent has. for the reasons stated in the answering papers, and summarised below, occupied the property since June 2006.

[6] The applicant is described in the trust deed (which was executed on 1 September 1997) as Gennari's •companion". Their relationship commenced in about 1982. The applicant v/as once a trustee of the trust Gennari, however, terminated her trusteeship on 14 September 1999.

[7]     The applicant is an Italian national. She resides in Italy. She does not have South African residency

[9] Between 2002 and 2006 attempts were made by Du Plessis to oersuade the applicant to waive her right for R100 000.00.

[10] The applicant .has only been ab'e to actually use the property once after Gennari's death, which was for a few weeks dunng February 2000.

[11] Since (at least) June 2006. the first and second respondents, from time to time, nave been occupying the property. The applicant has been in South Africa a few times since, and she has had to stay in rental accommodation for the duration of her visit.

"12.2 Liability for past and present maintenance costs and property rates in connection with the property falls on the trustees, not the applicant'

[14]   In particular the applicant argues that:-
14.1. The Trustees maintained the right of the applicant amounted to the common law right of "usus", which basically allows the applicant to utilise the property herseff but not to rent it to others. The right to lease was a right according to the Trustees, which Is not part of the right of usus. but accrues to the holder of ttte more extensive right of "ususfruchtus". It was contended that the applicant, being the holder of the usus right, has maintenance obligations and is responsible for the payment of rates and taxes.
14.2. The Trustees made the applicants right to access to the property dependent on the applicant paying aH the past expenses (by February 2000 set at approximately R300 000.00} and acceptable proof that sufficient funds are available in South Africa to meet her future obligations.
14.3 They argue further that the applicant was effectively precluded from exercising her right to use the property. For all practical purposes, the Trustees have achieved a transfer of the applicant's right ofusus to the first and second respondent. They contend that first and second respondents arc now using the property while ins/sting that the applicant is responsible for maintaining it and paying the rates and taxes.

[15] 	In !he alternative to the relief summarised above, the applicant seeks an order terminating the trust. I shall not be dealing with the alternative relief for reasons that will be advanced later in this decision.

16 5    The applicant has repudiated her obligations (this very application evidences her repudiation of her obligation to pay maintenance costs and property rates in respect of the property Because the property was falTing into a dilapidated condition, the first respondent took occupation of it in 200$ and has carried all expenses in regard to the general upkeep of the property. (The repudiation that characterizes this application Is, moreover, entirely at odds with an earlier undertaking made on behalf of the applicant, expressly and in writing, to pay the property rates in respect of the property. She has not honoured that undertaking, and the declaratory relief sought in paragraphs 3 and 4 of the notice o1 motion is inconsistent with it.) In addition, the applicant has refused to provide security (for the purpose sat out in paragraph 16.3 above) The consequence is that the applicant's rights of use are "held in abeyance until the security is given.
SERVITUDES; USUFRUCT AND USUS 
Ownership and servitudes

[17] Ownership comprises of an 'elastic' bundle of rights. It is elastic in the sense that the full exercise of ownership rights by the owner of the thing concerned (be it movable or immovable) may be suspended by granting a third party the power to exercise certain of the rights flowing from that ownership. 

[18]   The incidents of ownership that are relevant for present purposes are:
18.1. bare legal ownership; and
18.2. the right of use and enjoyment

Usufruct

[21] The obligations of the usufructuary that are relevant for present purposes are set out in paragraph 16.3 above.

Usus

[24] The use rights which are not incidental to the usuarys needs remain at the owner's disposal. For example the owner may attend on a farm subject to a right of usus to gather the fruits which remain after the usuary's subsistence needs have been met.

[26] The right of usus, and the obligations it entails, are flexible in the following sense. As the needs of the usuary increase, so he/she becomes entitled to use the property to a greater extent (and, conversefy. the residual rights vesting in the owner diminish).

[27] Logically, such an extension of the usuary's right of use (i.e. to cater for increased needs) extends the usuary's obligations, ff the usuary makes fulluse of the property to the complete exclusion of the owner, then the usuary's obligations expand to oecome commensurate with the obligations of a usufructuary, See, for example, 

[28]   In the case of both usufructus and usus:
28.1 The owner retains (at least) bare dominium of the property.

[29] The difference between the two is one of degree. It depends on the extent to which the bundle* of use rights (which exists over and above nude dominium) is conferred on the right holder, i.e. the extent of the subtraction from the owner's dominium. Viewed from the right holder's perspective, usufruct confers fuller rights than usus Viewed from the owner's perspective, usus subtracts to a lesser extent from the rights of ownership.

INTERPRETING THE TRUST DEED

"The right which your mother has obtained in terms of the Trust Deed (which I have prepared and of which i am the Donor), is not a usufruct but only a personal right to occupy the property ("usus"). This means that the right is available to her and not to members of her family or friends and also that she. is not entitled to let the property to others."

[34] The intention of Gennari was clearly to confer the right of "free occupation" or usus to the applicant and not the right or ususfruchtus. This is quite apparent from the following:

[38]    Consequently. I make the following order:

d) The Applicant is not responsible for the payment of any past expenses, including maintenance costs and property rates, in connection with the property.

e)   The Trustees of the Trust, in other words the trust itself, at the time when the order is made, shall pay the costs of this application.