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[2010] ZAECPEHC 25
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Le Roux v Reid and Another (2804/2006) [2010] ZAECPEHC 25 (8 June 2010)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE – PORT ELIZABETH)
Case
No.: 2804/2006
Date
heard:
09
March 2010
Date
delivered:
08
June 2010
In the matter between:
JACQUELINE
LE ROUX
Plaintiff
and
GUY EDWARD ANTHONY REID
First
Defendant
THE TRUSTEES FOR THE TIME BEING
OF
THE
FERNDALE FAMILY TRUST
Second
Defendant
J U D G M E N T
DAMBUZA, J
:
The defendants
have, at the end of the plaintiff’s case, brought an
application
for absolution from the instance.
In the main action
the plaintiff, as the owner of a property known as The Remainder of
the Farm Saagkuilen No 57
(“the
property”), seeks an order interdicting the defendant, in his
personal capacity and in his capacity as the Trustee
of the second
defendant, and anyone acting through him, from entering upon the
said property. In the alternative, the plaintiff
seeks a
declarator that the first defendant, in his personal capacity and in
his capacity as the trustee of the second defendant,
may not use the
plaintiff’s property for recreational purposes.
The plaintiff, in
her summons, contends that the first defendant, his family and
friends access the property for recreational
purposes and she seeks
a declarator that they may not do so. Access to the
contentious
portion of the property is gained through a gate which leads onto a
road referred to in these proceedings as the”Remainder
Road”.
The defendants
plead entitlement to enter upon the property by virtue of the
Remainder
Road being a public road. They contend further that in terms of the
first condition of title which appears in the Deed
of Transfer
relating to the property, they are entitled to use the Remainder
Road. This title condition provides that:
“
That
all roads and thoroughfares being and existing on the said land, and
as described in the plan or diagram of the same, shall
remain free
and uninterrupted; unless the same be closed or altered by competent
authority”
Further to the
defences raised by the defendants, they have filed
a
counterclaim in terms of which their claim to right of use of the
Remainder Road is founded on acquisitive prescription. They
also
rely, in their defence on
via
necessitate
.
The parties have, however, agreed that the issue of
via
necessitate
be
separated from the issues already mentioned and be dealt with at a
later stage. At this stage therefore, the only issues
before me
in the trial are the location of the minor public road 119H
proclaimed as a public road in 1972 or whether the Remainder
Road is
the public road so proclaimed, and whether the first condition of
title in respect of the property entitles the defendant
to use the
Remainder Road.
It was common cause at the trial that
a road, being a minor public road 119H was proclaimed as a public
road on 23 June 1972
in Government Gazette No 1122 (the “Gazette”).
In the Gazette the proclaimed road is described as:
“
From
a minor road in the Patensie Village Management Area on the boundary
of the said area in a general north-westerly direction
over Keurkloof
and Saagkuilen to a point on Holrivier, at the boundary common
thereto and the said Saagkuilen”
The defendants contend that the
proclaimed road (public road 119H) is the Remainder Road which
starts from a nearby village of
Patensie, and proceeds up to a point
in front of an entrance to the property, where it then enters the
property and follows a
path across the property to the boundary
thereof with another property, the farm Holrivier.
T
he
plaintiff’s case is that she has a right to stop unauthorised
use of the Remainder Road and her property. The defendants
deny that
their use thereof constitutes trespass as alleged by the plaintiff.
They further contend that this is a road which
should remain free
for use by members of the public as envisaged in the title condition
referred to above. In this application
the defendants contend that
there is no evidence on which a court might find that the plaintiff
has established a clear right
to the interdict she seeks.
The lines along
which a court should address itself to the question whether it will
grant absolution from the instance at the
end of the plaintiff’s
case were laid down in
Gascoyne
v Paul and Hunter
1917
TPD 170
at 173 as:
“
At
the close of the case for the plaintiff, therefore the question which
arises for the consideration of the Court is, is there
evidence upon
which a reasonable man might find for the plaintiff? ... The question
therefore is, at the close of the case for
the plaintiff was there a
prima
facie
case
against the defendant Hunter; in other words, was there such evidence
before the Court upon which a reasonable man might, not
should, give
judgment against Hunter?”
It has been held
that in an application for absolution from the instance at the end
of the plaintiff’s case, if the plaintiff’s
evidence
consists of the production of a document on which he sues, and the
sole question is the proper interpretation of the
document, the
trial court should normally refuse absolution unless the proper
interpretation appears to be beyond question.
1
Further, the court must assume, in the absence of very special
considerations, such as the inherent unacceptability of the evidence
adduced, that the evidence is true.
2
I am mindful that in this case, both the Government Gazette in
which the proclamation appears, and the Deed of Transfer in
which
the condition is found, are not documents on which the plaintiff
relies. It is the defendants who rely thereon. It
appears
however, that they are documents to which the plaintiff had to
answer. In my view, a court should also exercise the
same caution
when considering interpretation thereof.
EDWARD WALTER
BEAN
(Bean),
a previous owner of the property gave evidence on the background
facts. In summary, prior to 1962, the property together with
other
farms, now known as portions 1, 2 and 3 formed one property known as
the farm Saagkuilen. During the period 1962 or 1963,
Saagkuilen
was subdivided and devolved to the heirs of the original owner who
was a grandparent to, amongst others,
Bean
.
Bean
inherited
the Remainder property from his father. The first defendant and
Bean
are related. The second defendant, of whom the first defendant is a
trustee, is the owner of Portion 3 of the farm Saagkuilen.
Members
of the original Bean family have, on occasion accessed the property
to visit various sites of interests thereon.
There is, on the
property, a cave known as “the Bat’s Cave”, a lapa
situated some distance further into the
property from the Bat’s
Cave, a waterfall and a monument. The lapa is used as a picnic spot
and the monument was erected
by
Bean
in memory of his father.
According to
Bean
,
when he still owned the farm, he kept the gate locked as he farmed
in cattle. Persons visiting the property had to obtain a
key to the
gate from him. Accordingly anyone visiting the property, including
the first defendant, had to obtain permission from
him.
STUART JOHN
RIDDLE
(Riddle)
is
the plaintiff’s partner and lives with the plaintiff on the
property. The plaintiff acquired the property in 2003.
According
to
Riddle
,
when he and the plaintiff came to live on the property in 2003, the
practice of locking the gate to the Remainder Road was still
in
place and they continued to enforce it. As early as the first
week-end of the plaintiff’s occupation of the property,
members of the first defendant’s family, including the first
defendant’s wife, told the plaintiff and
Riddle
that they have the right to free access of the Remainder Road and it
would seem, some parts of the property, including the Bat’s
Cave. At first the first defendant and his family would seek
consent from the plaintiff or
Riddle
when they wanted to access the property. At some later stage,
according to
Riddle
,
the first defendant and/or members of his family resorted to
breaking a lock on one of the gates to gain access to the property.
A
t
the end of her case, the plaintiff filed an amended replication in
which she contends, amongst others, that because the title
condition
referred to in paragraph [2] above, was imposed in terms of former
Cape Colonial legislation which is no longer in
existence or
enforceable, it is no longer applicable to the property and the
defendants are not entitled to rely thereon. I might
as well, at
this early stage, agree with the submission on behalf of the
defendants that this contention is without merit. In
as far as a
title condition appears in a title deed, it is applicable to the
property to which the title deed relates, until
it is deleted or
amended by an appropriate authority. Further no case has been made
out that the condition was included in
the title deed in error or
that the condition, because of its content, is clearly not
applicable to the property. This is by
no means a pronouncement
that the Remainder Road is a “road” or a “thoroughfare”
as envisaged in the
title condition. The plaintiff contends in her
replication that the Remainder Road is merely an egress road from
the property
and consequently for private use by the owner of the
property. In my view, this contention merits consideration. And it
seems
to me that on the evidence before me at this stage, even in
the face of the condition referred to, a court might reasonably find
that the defendants are not entitled to use the road as they
contend.
With the exception
of one, i
n
all the maps and diagrams referred to during the trial the Remainder
Road appears as a dotted line over the property from the
entrance at
which the contentious gate is located. It continues over the
property to a point within the property where it stops
abruptly.
JOHN
ALLEN KOTZE (Kotze)
,
a registered professional Land Surveyor who gave evidence on behalf
of the plaintiff testified that generally minor roads are
shown on
maps as double lines rather than dotted lines. He then referred to
the Remainder Road as a “path” or a
“track”.
It would not be unreasonable, in my view, for a court to find that
such a track or path is intended for
private use by the owner of the
property.
During the trial a
number
of
problems regarding the interpretation of the Government Notice,
particularly the description of the proclaimed road were
highlighted.
Firstly the
proclamation describes the road
stating
“from
a minor road in the Patensie Village Management Area on the boundary
of the said area”
.
From what was as put to
Kotze
during
cross examination, the defendants case is that there is another
interpretation of the point where the road starts in Patensie,
other
than the one put forward by the plaintiff. In the Government
Gazette, the proclaimed Road appears as 7,7 kilometres long.
Kotze’s
evidence
was that he measured the Noaga Road (from a point on the boundary of
the Patensie area, not more than 100m from an existing
road (in
Ramaposa Village), to be 7,6km. The Remainder Road measured from
the same point to the boundary of the property with
the farm
Holrivier, measured 9,56km. The plaintiff’s contention
therefore is that, based on these measurements, the probabilities
are that the proclaimed road is the Noaga Road as it is closer in
length to the proclaimed road. On cross examination however,
Kotze
conceded that on a different interpretation of the Government Notice
the starting point could be elsewhere, thus affecting the
measurements of the roads. But again, even in the face of such a
concession, it would not, in my view, be unreasonable for a
court to
find for the plaintiff based on the measurements and the other
aspects of the proclamation referred to below.
A further
difficulty
with the description in the proclamation is that it refers to
proclaimed road as running in
“a
general north – westerly direction over Keurkloof and
Saagkuilen”.
It
was common cause during the trial that
neither
the
Remainder Road nor the Noaga Road runs in a general north-easterly
direction.
Even f
urther,
the Government Gazette provides that the proclaimed road ends at
“a
point on Holrivier, at the boundary common thereto and Saagkuilen”.
At this stage as I have stated, the evidence is that the Remainder
Road stops within the property. I have already referred
to the maps
and diagrams depicting the Remainder Road as ending within the
property, and to the plaintiff’s contention
that the road is
intended for private use by the owner of the property.
GORDON HAROLD
WEBSTER
(Webster),
a
registered surveyor, who has worked with the erstwhile Cape
Provincial Administration, the Uitenhage Divisional Council and
the
Regional Services Council, in the region wherein the property is
located, gave evidence explaining, the process of declaring
roads to
be public roads in general. His
evidence,
is briefly that local and/or regional authorities only maintain
public roads and not private roads. For elegibility
for
maintenance, existing roads used by members of the public, have to
be proclaimed to be public roads. In this way, a portion
of the
funds (subsidy) for maintenance of the road, is obtained from higher
Government authorities. The evidence is that in
this case, it is
the Noaga Road, rather than the Remainder Road that is maintained by
public authorities. Further,
Bean
and
Riddle
denied that Remainder Road is/or was used by members of the public.
T
he
defendants contend that there is no evidence that they have
trespassed on the property, or have been outside the road onto
the
property for recreational purposes. The plaintiff has therefore, so
the argument goes, not established real disputes concerning
infringements of her existing, future or contingent right(s). She
had not established that the defendants have utilised her
property
for recreational purposes or that they would do so in the future.
Consequently, so it was submitted, there is no evidence
upon which a
court might find for the plaintiff on the declarator sought. This
submission is made on the basis that the plaintiff
relies on the
following facts:
That the first defendant and members
of his family were twice seen walking on the Remainder Road. On
another occasion he, together
with friends and family, were seen
near one of the gates along the Remainder Road on a bakkie;
That the first
defendant had
admitted
that he had traversed the property and turned around at the lapa as
it was getting dark;
Unidentified
footprints
had
been observed by Riddle in the vicinity of the lapa and near the
Bat’s Cave;
Riddle had also observed unidentified
children, who were visiting the first defendant’s family,
throwing rocks into the
river from a cliff on the property. On
another occasion he observed children walking from the property with
pellet guns. On a
different occasion he observed the first
defendant’s wife walking to the monument on the property.
The
defendants argue that there is no evidence that these persons acted
through the first defendant.
Whilst it is true
that the plaintiff relies on this evidence for the relief she seeks,
it
is not the only evidence that she relies on.
It is common cause
that the first defendant considers himself
,
and even members of the public, entitled to be on the Remainder Road
by virtue of that road being public road 119H. It is
not in
dispute that at some stage the first defendant broke the lock on one
of the gates on the property to access the road and/or
the property.
Bearing in mind that at this stage, the issue of
via
necessitates
which is raised in the pleadings, is not before me, there seems to
be no purpose for the first defendant and any other persons
to use
the Remainder Road. This issue must be viewed in conjunction with
other aspects of the case, such as the plaintiff’s
assertion
that the Remainder Road is for her private use, the evidence that
the road ends within the property, the difficulties
regarding the
interpretation of the Government Gazette and the condition in the
title deed.
There is evidence
that the first defendant has in the past, with permission from
Bean
,
accessed the property for recreational purposes in the form of a
letter written by the first defendant to Bean in January 1993,
in
which he thanked Bean for allowing him access to the property. In
the letter the first defendant mentions that he brought
someone
referred to as “Linda’s dad” on his visit to the
property and also expresses a wish to bring another
friend who is a
“caver” to have a look at the Bat’s Cave. He also
asks for permission to bring the friend in
April 1993. Further
evidence is that, at some stage, the first defendant brought a
curator of an art gallery in East London
to look at a certain plant
on the property. A letter from the curator in which he thanked
Bean for allowing them to go up
the “Keurkloof” confirms
this. All this evidence might persuade a court to conclude that
the purpose of the first
defendant’s visits to the property
was recreational. This is particularly so in the absence of an
obvious alternative purpose.
Although I agree that the interdict
“against anyone, acting through the first defendant”, as
sought by the plaintiff,
will be unenforceable,
3
on the evidence before me a court might, in my view, reasonably
grant the interdict or the declarator sought against the defendants.
Consequently:
The application for absolution from
the instance is dismissed with costs. The defendants shall be liable
jointly and severally for
such costs, the one paying, the other to be
absolved.
_________________________
N. DAMBUZA
JUDGE OF THE HIGH COURT
Appearances
:
For the plaintiff: Adv A Beyleveld SC
instructed by Friedman Scheckter of Port Elizabeth
For the defendant: Adv I Smuts SC and
Adv D Taljaard instructed by Randell-Oswald Inc of Port Elizabeth
1
Gaforr v
Unie Versekeringsadviseurs (Edms) Bpk
1961 (1) SA 335
2
Atlantic
Continental Assurance Co of SA v Vermaak
1973 (2) SA 525
(E) at 527
3
Woolworths
(Pty) Ltd v SACCAWU & Another
[2006] JOL 16643
(LC);
Makhado
Municipality v SAMWU 7 Others
[2006] JOL 17074
(LC)