Alexander v Johns and Others [1912] ZAWLD 17 (30 May 1912)

Servitude-Building Scheme-Restrictions imposed on Lots of Township-Restriction against Coloured Occupation-Rights of Standholders.

Where several contigiuous lots of land are held separately by persons, under titles derived from a common vendor, who lays out the said lots for sale subject to a restriction amounting to a servitude, intended to form part of some general scheme and to be imposed upon, and to be for the benefit of, all the lots, and each of the said persons purchases on the footing that such restriction is to enure for the benefit of the other lots, each purchaser is entitled to the benefit of such restriction as against the others.
A certain township was offered for sale by auction in leasehold lots, advertised as" a white man's town." Each lease, which was for ninety years, convertible into freehold, contained a stipulation restrricting the lessee /Tom letting or transferring to, or in any way giving, suffering or allowing occitpation by a coloured person, and this stipulation was read out and advertised at the sale and the grant of the freehold was to be subject to it. Each lease reserved to the lessor the right to modify in part or in whole any restiction set forth in the lease. The leases were reqistered. Subsequently one of the leases was converted into freehold and the deed of transfer contained the said restriction. A successor in title to
such freehold lot let the land to a Eitropean who sublet to an Asiatic. The said successor told the Asiatic that he objected to his occupation, but did not take legal steps to eject him, although he was called upon to do so by a holder of one of the ninety year leases who had obtained a cession of rights from the said common vendor: - Held, that the said restriction amounted to a servitude which was enforceable by the holder of the said ninety yeas' lease against the holder of the said freehold lot if he attempted to evade it directly or if he transfened to another in collusion with such an attempt, but that collusion had not been proved and the holder of the said freehold  was not liable, under the said restriction, to eject the said Asiatic. (Hattingh vs. Robertson, 21 S.O. 273, followed.)