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[2016] ZAECPEHC 54
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Du Bruyn NO and Another v South African National Road Agency and Others (3765/2015) [2016] ZAECPEHC 54 (16 September 2016)
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IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION – PORT ELIZABETH
Case No: 3765/2015
Date Delivered:
16/09/2016
Date Heard: 22/06/2016
Not Reportable
In the matter between:
LOFTY DU BRUYN
N.O.
First
Applicant
In his capacity as a
Trustee of the
LOFTY DU BRUYN TRUST
(IT No: 447/2004)
ELSABé DU BRUYN
N.O.
Second
Applicant
In her capacity as a
Trustee of the
LOFTY DU BRUYN TRUST
(IT No: 447/2004)
and
SOUTH AFRICAN
NATIONAL ROAD AGENCY
LTD
First
Respondent
MINISTER OF
AGRICULTURE
FORRESTRY AND
FISHERIES
Second
Respondent
MINISTER OF PUBLIC
WORKS
Third
Respondent
REGISTRAR OF
DEEDS
Fourth
Respondent
JUDGMENT
LAHER, AJ
[1] The Applicant seeks a
mandamus to the effect that the Second and Third Respondents register
a servitude in the form of a way
of necessity over a property (erf
..2), which belongs to the State, and is held in custody by Third
Respondent.
[2] The Applicant is the
registered owner of portion 1 of the farm 510 Elandshoogte, which has
informally been subdivided into portions
A and B, subsequent to the
building of the N2 national road. Portion A is landlocked by portion
511 to the north west of it, portion
512 to the east, and the N2
national road to the south.
[3] It is common cause
that erf ..2 has access to a public road, the R102, which lies to the
south of the N2. A dirt road runs north
across erf ..2, from the R102
until it crosses the border at erf ..1 and joins a dirt road that
runs along the border of erf ..1,
past portion A.
[4] In the light of the
overall view I hold on this matter I will not distinguish the
Respondents’ grounds of opposition,
but deal with them
together. The Respondents oppose the granting of the servitude
on the following grounds:
(a) The most suitable and
shortest route for the servitude would require access to erf ..1, and
construction work that amounts to
a listed activity in terms of the
National Environmental Management Act 107 of 1998
. Accordingly the
Respondents argue, MTO Forestry (Pty) Ltd, (“MTO”), which
manages and operates a plantation on erf
..1, as well as the Minister
of Environmental Affairs and Tourism, are affected parties, and ought
to have been joined. Since
they were not, the application ought
to be dismissed.
(b) There are material
disputes of fact, which cannot be resolved on the papers.
(c) The Applicant has
failed to satisfy the onus to establish that the route it seeks to
register as a servitude, as well as the
extent thereof, is necessary,
and the most suitable route; and
(d) The applicant failed
to properly address the issue of compensation payable, if any, in
respect of the right of way.
[5] The Applicant alleges
that portion A currently enjoys access to the R102, via the dirt road
traversing erf ..2, as indicated
on the amended sketch plan, and that
it has been using the road for the last 10 years.
[6] The Applicant however
concedes that an approximately 25 meter stretch of this route
consists of a fairly recently created diversion
in the form of
cleared path, running from portion A along the border between erf ..2
and erf ..1, until it joins the established
dirt road that runs
across erf ..2 from erf ..1 to the R102. I will refer to this stretch
of cleared path as “the diversion”.
The material
difference between the original and amended sketch plans (LBD 3.1 and
LBD 3.2) is that the amended sketch plan includes
the diversion,
while the original does not.
[7] The Respondents,
submit it is in dispute whether the diversion (as indicated on the
amended sketch plan) in fact exists, and
if so whether it is suitable
for use as a way of necessity. In this regard the Respondents point
out that a land surveyor has not
plotted the diversion out on the
amended sketch plan, and that the amended sketch plan can accordingly
not be relied on as accurate.
The Respondents do not accept as
correct the photographs attached to the Applicants further affidavit,
and dispute that the diversion
is 25 meters long. They argue that it
is not clear from the photographs that the diversion is sufficiently
wide to allow vehicular
traffic, or that it is otherwise suitable for
the purpose contended by the Applicant.
[8] It is common cause
that the portion now referred to as portion A became separated from
portion 1 of erf ..0 when the State,
in order to construct the N2
national road, expropriated a tract of land running across portion 1
of erf ..0. In the result portion
A became landlocked by erf ..1, erf
..2 and the N2 (to which it has no access).
[9] The State appreciated
that portion A was landlocked, and that this severely prejudiced the
owners of the property, as a result
of which it had in the past
offered to purchase the property at fair compensation. There was of
course no obligation on the previous
or current owners of portion A
to sell the property to the State, and their refusal to do so cannot
impact on the question whether
a way of necessity ought to be
declared over erf ..2. Accordingly, their reasons for refusing such
offers to purchase are not material
to the present application.
[10] The owners of
portion A, some ten years ago, allowed the Lupus Foundation to
establish a wolf sanctuary thereon. Being
landlocked, the wolf
sanctuary has relied on the dirt roads traversing erf ..1 and erf ..2
to give its staff and members of the
public access to portion A.
[11] The Third
Respondent allows MTO, which operates on portion ..1, to use the dirt
road running across erf ..2 as an emergency
access, but denies that
it has permitted the road to be used for general public access.
[12] The Applicant
has since undertaken to sell portion A to the Lupus Foundation, and
for that purpose seeks to register
a formal subdivision of portion 1
of erf ..0 into portions A and B. However, in order to complete such
subdivision it is necessary
to establish access to a public road from
portion A, which can only be done by traversing erf ..2.
[13] The Applicant
therefore contends that it needs a servitude in the form of a way of
necessity across erf ..2, as set out
in an amended sketch plan
attached to the Applicant’s further affidavit dated 24 August
2016 as “LBD3.2” (the
amended sketch plan).
[14] I pause to
note that the sketch plan originally attached to the Applicant’s
founding affidavit, and attached to
his further affidavit dated 24
August 2015 as “LBD3.1” (the original sketch plan), plots
out a road along a different
path, with markedly different
implications. The route plotted on the original sketch plan runs onto
erf ..1, the owners of which
have not been joined, while the route
indicated on the amended sketch plan diverts westwards towards
portion A just before it reaches
the northern edge of erf ..2, and
accordingly does not involve erf ..1.
[15] It is apparent
from the papers that portion A is landlocked and that a servitude
over neighbouring property is necessary
to provide portion A with
access to a public road. What remains in issue however is whether a
5-meter wide right of way over erf
..2, along the route indicated on
the amended sketch plan (LBD 3.2), meets the criteria for the grant
of a servitude in the form
of a way of necessity.
[16] The
Respondents further take issue with the width of the servitude sought
by the Applicant, in that he seeks a 5-meter
wide servitude, but has
not alleged and proved facts sufficient to establish that a servitude
of this width is necessary or suitable.
[17] The
Respondents argue that, due to the material disputes of fact, and the
non-joinder of MTO Forestry (Pty) Ltd and the
Minister for
Environmental Affairs and Tourism, the application should be
dismissed with costs.
[18] The
Respondents further raise issue with the fact that the Applicant has
not tendered compensation in respect of the
envisaged servitude. The
Applicant’s position is, in a nutshell, that the State caused
portion A to become landlocked, and
as such it is reasonable and
equitable that the State bear the cost of providing access by way of
servitude. Accordingly the Applicant
seeks that the court exercises
its discretion to award the servitude without payment of
compensation.
[19] It is trite
that motion proceedings are, as a rule, not suited to resolving
disputes of fact, and save for a few exceptions
such as liquidation,
motion proceedings should only be utilised in cases where the
application of the law, rather than the facts,
are in dispute (
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 3 SA 1155
(T)
). Accordingly, when an Applicant elects to proceed by way
of motion, while there are foreseeable disputes of fact, he does so
at
his own peril. For this reason, a court faced with material
disputes of fact in motion proceedings will rely on the version of
the Respondents, together with those facts in the Applicant’s
affidavits that have not been disputed by the Respondents
(
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
[1984] 2 All SA 366
(A)).
[20] A bare denial
of the facts alleged by the Applicant would not be sufficient to
create a material dispute of fact. The
Respondents are required to
say enough in their affidavits to enable the court to conduct a
preliminary examination to determine
whether the Respondent’s
denials are not fictitious or intended merely to delay the matter
(
Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 3 SA 1155 (T)
).
[21] I am mindful
of what was said in
Soffiantini v Mould
[1956] 4 All SA 171
(E), where the court cautioned that:
“
If
by a mere denial in general terms a respondent can defeat or delay an
applicant who comes to Court on motion, then motion proceedings
are
worthless, for a respondent can always defeat or delay a petitioner
by such a device.
It
is necessary to make a robust, common-sense approach to a dispute on
motion as otherwise the effective functioning of the Court
can be
hamstrung and circumvented by the most simple and blatant stratagem.
The Court must not hesitate to decide an issue of fact
on affidavit
merely because it may be difficult to do so. Justice can be defeated
or seriously impeded and delayed by an over-fastidious
approach to a
dispute raised in affidavits.”
[22]
It is apparent from both the sketch plans that the only public
road, abutting portion A, is the N2 national road. From the papers
filed by the Respondents it is clear that no access to the N2 will be
granted. The Applicant therefore correctly contends that
portion A is
landlocked. The Respondents, in argument, suggested that the dirt
road depicted on the original sketch plan, traversing
the southern
border of erf ..1 along its border with erf ..0 and erf ..2,
eventually joins up with the N2. As such, it was argued,
that the
dirt road traversing erf ..1, from the entrance to portion A up to
the alleged connection with the N2, represents the
shortest and most
suitable route over which a way of necessity could be declared.
[23]
The affidavits filed by the Respondents do not establish that
the dirt road on erf ..1 connects directly to the N2, and I am unable
to make a finding to this effect. As such it appears that the route
running across erf ..2 to the R102 is in all probability the
most
suitable, if not the only, route by which excess to a public road
could be obtained from portion A
.
[24]
It is common cause that the road running from the R102 across
erf ..2 up to erf ..1, as depicted on the original sketch plan, is
an
already constructed and well established road, as is evident from the
27 photographs attached to the Applicants further affidavit
dated 24
August 2016. Photographs 1 to 22 depict the established road, as it
runs across erf ..2, until it reaches the border with
erf ..1 (“the
road”), at which point the pictures follow the diversion that
allegedly runs a distance of approximately
25 meters along the border
with erf ..1, until it crosses onto portion A. It is this route,
appearing on the 27 photographs, that
is depicted on the amended
sketch plan that the Applicant seeks to have registered as a way of
necessity.
[25]
From the photographs the diversion appears be a reasonably
well-established path that has been in use for some time. It is
further
clear that the diversion constitutes a small portion of the
total route over which the Applicant seeks a servitude. However,
regard
must be had to the affidavit of State Attorney Michelle Botha,
who states under oath that she inspected the dirt road running along
erf ..2 and was unable to locate the diversion. The Respondents
accordingly dispute the existence of the diversion. The Respondents
further argue that the photographs and sketch plans are insufficient
to determine the true path, length, width or suitability of
the
diversion, since a land surveyor has not confirmed it.
[26]
The Respondents have done more than raise a bare denial, and I
am satisfied that a real dispute of fact exists as to the placement
and nature of the diversion. Further, in regard to what constitutes
the most suitable route from portion A to the established dirt
road
traversing portion ..2, there exists a real dispute as to whether the
dirt road running across erf ..1 represents a more suitable
link than
the diversion indicated on the amended sketch plan. It does not
appear that the dispute can be resolved on the papers,
and the
Applicant has not requested that the matter be referred for oral
evidence, or an inspection in loco.
[27]
In the circumstances I agree with the Respondents that the
suitability of the road traversing erf ..1 ought to have been dealt
with,
and that MTO Forestry ought to have been joined.
[28] I do not
however agree that the Minister of Environmental Affairs and Tourism
need to be joined. The registration of
a 5-meter wide way of
necessity would not amount to approval of the construction of a
5-meter wide road. Any proposed construction
of a road may well
require the Applicant to approach the Department of Environmental
Affairs and Tourism in so far as such construction
may constitute a
listed activity. That, however, remains a bridge to be crossed at a
later stage, if and when the construction
of such a road is
undertaken. The construction of such a road does not form part of the
relief sought in the present application.
[29]
I
t is inappropriate for this court to
pronounce on the complex nature of the environmental legislation that
would be applicable to
the construction of a more durable road along
the diversion, and to give a decision on both common law and
environmental issues.
The court’s function is to decide common
law issues, namely the possible acquisition of a way of necessity. If
the Applicant
succeeds in acquiring a way of necessity, he would have
to comply with the necessary environmental legislation when he wants
to
exercise that right by constructing a more durable road along the
diversion. (
Aventura
Ltd v Jackson
2007 5 SA 497
(SCA))
.
[30]
It follows that the Minister of Environmental Affairs and
Tourism is not affected by the relief sought in this application, and
I am accordingly of the view that he need not have been joined to
these proceedings.
[31]
A
via
necessitates
is
awarded on the basis of what is necessary. De Villiers, C.J., in
van
Schalkwyk
v.
Du Plessis
and Others
,
17 S.C. 454
,
considered the circumstances which would justify the grant of a
via
necessitatis
,
and at p. 464 said:
"As
to the road being one of necessity to the plaintiff, the Court has
never laid down any definite rule as to what circumstances
would
constitute such a necessity, nor is it advisable that such a rule
should now be laid down. It is not necessary for the purpose
of the
present case to go so far as to hold that there can be no road of
necessity over a neighbour's land, unless the only possible
approach
to a public road is over such land. There may perhaps be cases in
which the alternative route would be as difficult and
inconvenient as
to be practically impossible, and in such cases the Court might be
justified in affording relief subject to compensation,
and the other
restrictions mentioned by Voet (8.3.4). The present case is not,
however, of such a nature. It is an inconvenience
I must say, a great
inconvenience for the plaintiff not to be able to use the road in
question in order to bring his cattle from
his mountain farm on to
the nearest public road or to his other farms. But the inconvenience
to the plaintiff is not so great as
to justify the Court in putting
the defendants out to the still greater inconvenience of having a
cattletrack through their narrow
and cultivated strip of land. The
plaintiff can reach the public road by a track over the farms 'Lous
Legplek' and 'Pampoenfontein',
and although that track is more
circuitous and less convenient than the one claimed, it is certainly
not impracticable as a means
of access to and egress from his
farm"
.(
Trautman NO v Poole
[1951] 3 All SA 149
(C)).
[32]
A way of necessity takes the form of the
shortest route to the nearest public road and the route that causes
the least damage to
the servient tenement.
(
Jackson
v Aventura Ltd
[2005] ZAWCHC 15
;
2005 2 All SA 518
(C))
.
[33] In the present
case there is clearly no access to portion A, and there is a need to
declare a way of necessity over neighbouring
land.
[34] However,
despite the obvious need for a servitude of the kind suggested by the
Applicant, the Applicant bore the onus
to establish that the
particular servitude it seeks is necessary and suitable, and that no
other more convenient route of access
exists. To this end the
Applicant was required to establish that the suggested route
presented the shortest most direct route of
access and caused the
least interference with the servient tenement. The Applicant likewise
bore the onus to establish why the
right of way should be 5-meters
wide.
(Van Rensburg v Coetzee
[1979] 4 ALL SA 848
(AD)) This
the Applicant has not done.
[35] There is a
real dispute as to what the most appropriate route would be, and
about the existence itself of the diversion,
which is a crucial
portion of the route argued for by the Applicant. The Applicant has
not indicated why the way of necessity should
be 5-meters wide, and
there is insufficient information on which to determine what a
reasonable width would be. On this ground
alone the application must
fail.
[36] I am of the
view that there simply remain too many issues that cannot be resolved
on the papers. The material disputes
of fact, and non-joinder of MTO
Forestry, leaves this court with no option but to dismiss the
application with costs.
[37] In the result
the following order is made.
“
The application is
dismissed with costs, including costs of two counsel for second and
third respondent”.
_______________
RB LAHER
Acting Judge of the
High Court
Counsel for the
applicant, Adv B Pretorius, instructed by Nel Mentz Incorporate c/o
Greyvensteins Attorneys
Counsel for the first
respondent, Adv B Dyke instructed by Brown Braude & Vlok
Incorporate.
Counsel for the second
and third respondent, Adv A Beyleveld (SC) and Adv M Pango instructed
by State Attorneys Port Elizabeth
Date Heard:
15 September 2016
Date Delivered:
22 September 2016