Ethekwini Municipality v Brooks and Another (411/09) [2010] ZASCA 74; 2010 (4) SA 586 (SCA) ; [2010] 4 All SA 164 (SCA) (27 May 2010)

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Ethekwini Municipality v Brooks and Another (411/09) [2010] ZASCA 74; 2010 (4) SA 586 (SCA) ; [2010] 4 All SA 164 (SCA) (27 May 2010)

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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
judgment
Case
No
411/09
In
the matter between:
Ethekwini
muncipality
Appellant
and
r
e brooks
First
Respondent
L
a mindry
and
14
others
Second
to Fifteenth Respondents
Neutral
citation:
Ethekwini
Municipality v Brooks
(411/09)
[2010] ZASCA 74
(27 May 2010)
Coram:
Mpati
P, NAVSA, van heerden
and
Mhlantla
JJA and GRIESEL AJA
Heard:
14
May 2010
Delivered:
27
May 2010
Summary:
Servitude
of right of way – whether such a ‘public street’,
as contemplated in s 1 of Ordinance 25 of 1974
(Natal).
order
On
appeal from:
KwaZulu-Natal High Court
(Durban) (Choudree AJ sitting as court of first instance):
The appeal is
dismissed with costs.
judgment
Griesel
AJA (Mpati P, Navsa, van heerden
and
Mhlantla JJA
con­curring
):
The
issue for determination in this appeal is whether a servitude
of
right of way over the first respondent’s land is to be
classified as a ‘public street’ as defined in s 1

of the Local Authorities (Natal) Ordinance 25 of 1974 (‘the
Ordinance’). (For convenience I refer to the appellant
as ‘the
municipality’ and to the first respondent as ‘Mrs
Brooks’.)
1
Mrs
Brooks
launched an application in the KZN
High Court, Durban against the municipality (as first respondent in
the court below), seeking,
inter alia
,
an order declaring that the servitude of right of way over her
property does not create a public street as defined in the

Ordi­nance. In addition, she also sought certain interdictory
relief, prohibiting the munici­pality from treating
,
in any manner or form
,
that portion of her property which
is subject to the servitude
as a public road; and pro­
hibiting
and interdicting the municipality from undertaking or con­tinuing
any road works on that portion of her property
which is subject to the servitude
,
‘
without first complying with
the provisions relating to private streets in the Local Authorities
Ordinance, No. 25 of 1974 and/or
the Durban Extended Powers
Consolidated Ordinance, No. 18 of 1976 or taking steps in terms of
those laws to declare Nyala Drive
a public road’.
The
municipality opposed the application and, in its answering
affidavit, adopted the attitude that Nyala Drive is a public street

as defined in the Ordinance. In the result, so it contended, the
municipality is ‘obliged to fulfil the obligations
contemplated
by s 209 of the Ordinance for the public benefit
and, in particular, to ensure that the road is kept in good order
and repair’.
The
high court rejected the municipality’s contentions and granted
an order in favour of Mrs Brooks, hence this appeal,
which is before
us with leave granted by the court below.
A public street
The
answer to the dispute between the parties must be sought in the
definition of ‘public street’ as defined in s 1
of
the Ordinance, namely, as ‘any street which –
(
a
) has
been established by a local authority or other competent authority as
a public street;
(
b
) has
been taken over by or vested in a local authority as a public street
in terms of any law;
(
c
) the
public has acquired the right to use; or
(
d
) which
is shown on a general plan or diagram of any private township situate
in the area of a local authority filed in the Deeds
Registry or the
Surveyor-General’s Office and to which the owners of erven or
lots in such township have a common right of
use.’
A
‘private street’, on the other hand, is defined, in the
same section, as ‘any street which is not a public
street’.
In
support of its contention that Nyala Drive is a public street, the
municipality relied mainly on para (c); alternatively paras
(b) and
(d) of the definition. These requirements will accordingly be
considered con­secutively in the sequence adopted by
the
municipality, after a brief examination of the relevant factual
background.
Factual background
In
1993 Mrs Brooks took transfer of the property described as:
‘
Remainder
of Lot 183 Drummond, situate in the Drummond Health Committee Area
and in the Port Natal-Ebhodwe Joint Services Board
Area,
Administrative District of Natal; in extent 3,7497 (Three Comma Seven
Four Nine Seven) Hectares.’
The
property originally formed part of subdivision B of what was then
infelicitously called ‘Farm Kafirdrift No 906’
(later
renamed as ‘Farm Drift No 906’). It is situated in a
rural area, near the Valley of a Thousand Hills. Certain
further
subdivisions, numbered 2 to 10 (subse­quently renumbered as
erven 175 to 183), were surveyed over sub­division
B in 1947. At
the same time, a servitude of right of way 30 feet (9,14 metres)
wide was surveyed over the farm. The servitude
was created in order
to provide access by means of a road to the newly
created
land-locked sub­divisions, which would otherwise have no road
access. Suitable endorsements reflecting the servitude
were entered
upon the title deeds of the relevant subdivisions. A similar
endorsement also appears in Mrs Brooks’ title
deed, recording
that her property is subject to a servitude of right of way as
indicated on a Surveyor-General’s diagram
‘in favour of
the Remainder of B of the Farm Kafir­drift’; in other
words, in favour of the other subdivisions
lying to the north and
the west of her property, which subdivisions later came to be
described as erven 175 to 182.
2
The
first subdivision to be registered
(in
1960) was subdivision 10, later described as Lot 183, of which Mrs
Brooks’ property forms the remainder. Later, a road
known as
Nyala Drive was created within the area of the servitude. The road
is untarred and extends
over
a distance of just over one kilometre, allowing access to the
various sub­divisions. A sign indicating that the road
is a
cul-de-sac has been placed at the entrance of Nyala Drive and was
still there when these pro­ceedings commenced, as
appears from
one of the photographs on record. The road commences off Thousand
Hills Drive, runs in a northerly direction across
Mrs Brooks’
property for a short distance, before turning in a westerly
direction at a ninety degree bend on the north-eastern
corner of her
property and continuing from there in a straight line to the end of
the cul-de-sac.
A
dispute arose between the municipality, on the one hand, and the
owners of several of the properties abutting upon Nyala Drive,
on
the
other hand, as to the party or parties
liable to maintain that road. Main­tenance was originally
undertaken by the Drummond
Health Committee, the predecessor in
title of the municipality. Thus, on 24 July 2003 Mr Hobson,
Executive Director: Engineering
Services of the Outer West area of
the municipality told a meeting of owners of certain properties
serviced by Nyala Drive that
he considered
the road to be a right of way servitude and not a public road. He
informed the meeting that the munici­pality
proposed to
undertake certain
modi­fications to
the recently in­stalled drains and that it would thereafter
arrange for the road to be graded. The maintenance
of the road would
thereafter be the obligation of the various landowners.
In
a similar vein,
Mr D B Thomas, D
eputy
Head: Roads Provision, wrote to one of the other owners in Nyala
Drive on 27 September 2004:
‘
Nyala
Road, as it stands, is a right-of-way servitude in favour of the
property owners and not a public road. In view of the afore-mentioned

the maintenance of the road will remain the responsibility of
residents.’
On
5 October 2004, in a letter addressed to Mrs Brooks, Mr S Chetty,
Manager: Engi­neering Services in the Roads Provision

Depart­ment of the muni­cipality, reiterated that Nyala
Drive was ‘a right-of-way servitude in favour of the property

owners and not a public road’. In the result, so it was
stated, ‘the maintenance of the road will remain the
responsibility
of the residents’.
However,
a
fter receiving a petition, dated 18
October 2004, signed by 14 of the 16 owners of properties abutting
Nyala Drive,
however, the municipality
reconsidered the matter and appears to have changed its stance.
During April 2005 it accordingly informed
Mrs Brooks that, on the
advice of the Surveyor-General and its own legal department, it
would henceforth be treating Nyala Drive
as a public road and would
assume responsibility for its maintenance.
Matters
came to a head a few months later, during November 2005, when the
municipality commenced extensive road and construction
works on
Nyala Drive on
a portion of the property
of Mrs Brooks. This conduct precipitated the urgent application that
forms the basis of the present
appeal.
Against
this background,
I now to turn to deal
with the individual requirements on which the municipality relied in
support of its contention that Nyala
Drive is a public street.
The right of the public to use the
road
In
considering whether or not the public had acquired a right to use
Nyala Drive, it
may be noted that, at
common law, there were two kinds of roads which members of the
public were entitled to use: the one was
the
via
publica
, coming into existence by
proclamation as a public road by the competent authority. This
category, which coincides with para
(a) of the definition of ‘public
street’, does not concern us as it is common cause that there
has been no procla­mation
in respect of Nyala Drive. The other
category of public road is a so-called
via
vicinalis
or ‘neighbours’
road’ (Afrikaans:
buurweg
)
.
In
Malherbe v Van Rensburg
&
’n ander
3
the court (Van Winsen J, Corbett J concurring) dealt with the
nature and origin of a ‘buurweg’ and held as follows:
‘’
n
Saaklike reg van weg kan, onder andere, deur verjaring bekom word
mits die aanspraakmaker op so ’n reg bewyse kan lewer
dat hy en
sy voorgangers-in-titel ten opsigte van
praedium
in wie se guns die reg opgeëis
word, gebruik gemaak het vir ’n tydperk van 30 jaar van ’n
bepaalde weg, en dat
die gebruik openlik, vreedsaam en sonder
instemming van die eienaar van die grond waaroor die weg loop,
geskied het. In teenstelling
hiermee kan die publiek geen regte tot
’n weg by wyse van verjaring verwerf nie. Sodanige verwerwing
kan slegs uit hoofde
van gebruik sedert ’n onheuglike tyd
geskied. Deur sodanige gebruik word ’n buurweg geskep. Daar rus
op die persoon
wat beweer dat so ’n buurweg bestaan die
bewyslas om aan te toon dat
die publiek
in die algemeen
, sonder beletsel van
die eienaar van die grond waaroor die weg loop, vir so ’n
geruime tydperk van die weg gebruik gemaak
het dat die oorsprong van
die gebruik nie bepaal kan word nie. Die reg deur so ’n gebruik
geskep het sy oorsprong in “ancient
custom” of
vetustas.
Weens die verswarende aard van regte op
hierdie wyse deur die publiek oor ’n ander se grond verkry word
duidelike bewyse van
sodanige gebruik geverg.’
4
(My
emphasis).
When
it comes to a
servitude of right of way,
it is important to bear in mind that it enures not only to the
servitude holder but, as it was put
by Voet,
5
also to ‘the members of his
household,
his guests, his table companions, hirelings and medical attendants
along with him.’
This passage in
Voet does not purport to create a watertight
numerus
clausus
of parties entitled to make
use of a servitude road. Thus,
Maasdorp
6
para­phrased the above passage as follows:
‘
(S)ervitudes
. . . may be made use of, not only by the owner of the
dominant tene­ment, but by
anyone
who has a legal right to be upon the dominant tenement
,
such as servants, guests, visitors, labourers, etc.’
(My
emphasis.)
This
brings me to the evidence adduced on behalf of the municipality i
n
support of its contention that the public has acquired the right to
use Nyala Drive:
(a)
Mr
Alan Neil Mitchell, a practising land surveyor, has been employed by
the municipality (and its predecessor) since 1985 and he
is presently
Manager: Land Sur­veying in the Surveying and Land Information
Department of the Engi­neering Unit of the
municipality. He said
inter alia
the following with regard to Nyala Road:
‘
Access
to members of the public was not at any stage, as far as I am aware
and as far as the records of the respondent reveal, ever
barred.
Members
of the public were always allowed to use the road which was created
in the area of the servitude which ultimately acquired
the status of
a public street.’
(b) Ms
Dorothy Grace Canny, who was a secretary at the Drummond Health
Committee between the years 1971 and 1979, stated:
‘
Nyala
Drive was already in existence when I joined the Drummond Health
Committee. As far as I am aware, it was always regarded as
a road to
which members of the public had access and which the public
utilised.’
(c
) Ms
Frith Myers joined the Drummond Health Committee as Town Secretary on
3 February 1993 and remained in that position until the
Drummond
Health Committee was eventually incorporated into the
Outer
West area of the municipality, where she is presently still employed.
She said:
‘
As
far as I am aware, Nyala Drive was always regarded as a public road
to which the public had access and which they utilised.’
(d)
Mr
Richard William Birkett
,
the Deputy Surveyor General,
Pietermaritzburg, stated that ‘. . . our offices share the
views expressed in the affidavit of
Mitchell to the effect that Nyala
Drive has acquired the status of a public street’. He added:
‘
Nyala
Drive was accessible to the public ever since the creation of the
first subdivisions serviced by it; members of the public
were never
barred access to it; . . .
certain of the
owners of such subdivisions appear to be engaging in commercial
enterprises such as nurseries which will attract
members of the
public.’
In
the circumstances, a
ccording to Mr
Birkett, it is ‘inconceivable that Nyala Drive could still be
classified as a private road’.
Mrs
Brooks
, in her replying affidavit, denied
that Nyala Drive had been regarded by the municipality and its
predecessor as a public street.
Her attitude is summarised as
follows:
‘
I
remain the owner of my property and the only people who may
legitimately use it are those in whose favour the right of way
servitude
was created and this is a finite and limited class of
people.’
She
added that, when she purchased her
property (in 1992), there was a sign at the entrance from Thousand
Hills Drive to the following
effect: ‘Residents’ Access
Only’. Her evidence in this regard is supported by
affidavits
from two current owners and one former owner in the area, who
similarly recall that members of the public did not enjoy

un­restricted access to Nyala Drive, nor did they routinely use
it as a public road. Indeed, as pointed out by one of these

witnesses, ‘. . . members of the public, unless
they were visiting property owners in the area, had no need
and
could not access any public place if they travelled down the road’.
It
is significant to note that, although Mr
Mitchell filed a supple­mentary affidavit in response to some of
the allegations
contained in the replying affidavit of Mrs Brooks,
he did not deal with these aspects of her evidence, which are thus
uncontradicted.
Apart
from the
above views expressed in vague
and general terms on behalf of the municipality regarding the public
nature of Nyala Drive, there
had, of course, also been the contrary
views expressed by senior employees of the municipality, as
mentioned earlier.
7
Those views only changed after the petition of 18 October 2004, in
which the various owners urged the municipality to regard
Nyala
Drive as a public street. (This seems to confirm that all owners of
properties in Nyala Drive at that stage still regarded
it as a
private street.) Thus, far from being generally regarded as a public
street, exactly the opposite seems to have been
the position –
at least until 2005, when the municipality had a change of heart.
H
aving
regard to the legal test as outlined above and bearing in mind the
requirement for clear proof (‘duidelike bewyse’)
in
support of
the right relied on, I am of
the view that the evidence adduced on behalf of the municipality
falls far short of establishing
a right on the part of the general
public to use the road in question. At best for the municipality,
the evidence establishes
that some members of the public, or persons
other than the owners of subdivisions, may, over the years, have
used the road from
time to time without let or hindrance. However,
the evidence fails to establish whether or not those members of the
public who
used Nyala Drive over the years fell into the extended
category of lawful users of the servitude of right of way described
by
Voet in the passage referred to above. It follows, therefore,
that the municipality has failed to prove that the public has
acquired
a right to use the portion of Nyala Drive that forms part
of the property of Mrs Brooks.
Has the road been
taken over by or vested in the municipality
?
The
first alternative argument advanced by the
municipality relies on para (b) of the definition, based on an
allegation that Nyala
Drive has been taken over by or vests in the
municipality. Section 220 of the Ordinance deals with this situation
and reads as
follows:
‘
(1)
Whenever any private street referred to in
section 218 or section 219 has been formed, hardened, paved, kerbed
and guttered to
the satisfaction of the council, then on the
application in writing of the owner of the land, or, as the case may
be, of the owners
representing more than one-half of the value of
houses and land abutting upon such street, the council shall take
over such street
as a public street.
(2)
Notwithstanding anything hereinbefore contained, the council may
also with the consent in writing of the owners representing
more than
one-half of the value of houses and land abutting upon any private
street, take over such street as a public street.’
I
n
support of this leg of the argument, the municipality relied on the
petition referred to above,
8
which set out the history of the road and proposed that Nyala Drive
be recognised as a ‘public road’ for purposes
of
maintenance. (Mrs Brooks refused to sign the letter, while another
owner could not be located.) The municipality regarded
the petition
as an application by owners representing more than one-half of the
value of houses and land abutting the private
street in question to
take over such street as a public street. It therefore claims to
have acceded to the application and to
have ‘taken over’
Nyala Drive as a public street.
Leaving
aside the question whether or not Nyala Drive is the kind of private
street referred to in sections 218 and 219 (which
is open to
considerable doubt), there is simply no evidence of any decision
having been taken by the council to take over that
street. Had such
a decision legitimately been taken, one would have expected a clear
recordal thereof. Thereafter, the next step
would have been to
regularise the position in the offices where transactions of this
nature are recorded, namely the Registrar
of Deeds and the
Surveyor-General. In this regard, s 221 of the Ordinance provides as
follows:
‘
Whenever
the council shall take over any private street as a public street as
hereinbefore provided, such street shall vest in the
council, but it
shall not be necessary for such street to be transferred to the
council, the Registrar of Deeds and the Surveyor-General
being hereby
authorised to make such entries in the records of their respective
offices as may be necessary to give effect to the
provisions of this
section; provided that they or either of them may require the
production of such proof or other information
as they or he may deem
necessary, including any plan or plans; and provided further that the
title deeds of any property concerned
shall be produced to the
Registrar of Deeds whenever they are available, for endorsement in
terms of such vesting aforesaid.’
N
o
evidence has been adduced of any entries made in the records of
either of those offices to give effect to the purported taking
over,
nor have the title deeds of the properties concerned been produced
to the Registrar of Deeds for endorsement.
Bearing
in mind that ownership in public streets vests in the municipality
in terms of s 208 of the Ordinance,
the
municipality’s argument that it had ‘taken over’
Nyala Drive as a public street implies that it had somehow,

informally and unilaterally, acquired owner­ship of a portion of
Mrs Brooks’ property – in the process depriving
her of
ownership of that portion – without any formal decision or
recordal to that effect and without any steps having
been taken in
respect of expropriation as contemplated by s 190 of the
Ordinance. This proposition only has to be stated
for it to be
rejected.
Faced
with these formidable obstacles, counsel for the munici
­pality
– without expressly abandoning the point – rightly did
not press it with much vigour. In my view the municipality’s

contentions regarding a ‘takeover’ of Nyala Drive as a
public street are simply untenable.
The
Surveyor-General’s diagrams
The
final leg of the municipality’s argument
received
scant attention in the papers filed on its behalf. It is based on
para (d) of the definition which, to repeat, refers
to a street
‘which is shown on a general plan or diagram of any private
township situate in the area of a
local
authority filed in the Deeds Registry or the Surveyor-General’s
Office and to which the owners of erven or lots in
such township
have a common right of use’.
In
support of this point, Mr Mitchell attached an extract from a
drawing (No FT8A–4B) compiled and drawn in the office of
the
Surveyor-General, which was completed on 8 May 1963 and kept up to
date with information relating to subdivisions and servitudes.
It
shows the individual properties and roads in the general area of
Drummond. Where Nyala Drive is situated, the diagram clearly

indicates ‘right of way servitude SG 200/48’.
Mr
Birkett, in his sup­porting affidavit, briefly deals with this
aspect as follows:
‘
I
confirm also that as far as our offices are concerned, Nyala Drive is
reflected on diagrams of the private townships created in
the area
serviced by the road, filed in our offices, as being one to which the
owners of erven in such townships have a common
right of use.’
I
shall accept for present purposes, without deciding the point, that
the properties and their subdivisions shown on the general
plan or
diagram relied on fall in ‘a private township situate in the
area of a local authority’. The further requirement
is more
problematic: the diagram must depict a street ‘to which the
owners of erven or lots in such township have a common
right of
use’. This is the aspect in the definition on which the
municipality strongly relies. In my view, the reliance
is misplaced.
It is clear beyond doubt, and confirmed by the general diagram, that
the owners of properties in Nyala Drive enjoy
their
common
right of use of the street by virtue of the servitude of right of
way. (The rights derived from the servitude are, of course,
also
enjoyed by the owners of new subdivisions, the general principle
being that ‘[i]f the dominant land is physically
subdivided
between different co-owners, the servitude continues to be attached
to each subdivided portion of the land in so far
as it can benefit
from the servitude, provided that it does not increase the burden on
the servient land.’)
9
Can the mere fact that the street is shown on the Surveyor-General’s
diagram now convert what manifestly is a private street
into a
public street? This would clearly be an absurd result, which could
not have been intended by the legislature. For para
(d) of the
definition to make any sense, one would therefore have to interpret
it so as to exclude from its ambit of application
streets in respect
of which owners enjoy their common right of use by virtue of a
servitude of right of way.
I
am
accordingly of the view that para (d)
of the definition likewise does not assist the municipality in
establishing that Nyala Drive
is a public street.
Costs
I
t
follows from the foregoing analysis that the appeal falls to be
dismissed with costs. It remains to deal briefly with one aspect

relating to costs. The court below, when granting leave to appeal to
this court, ordered the municipality to bear the costs of
Mrs
Brooks, not only with regard to the application for leave to appeal
(which included an application by the municipality for
condonation
for late noting of its
appeal), but also
‘the costs of the appeal incurred by [Mrs Brooks] in
prosecuting her defence to the appeal’. The
municipality
subsequently obtained the leave of the court below to appeal against
that portion of the order as well.
The
learned judge, in granting leave to appeal, did not refer to any
authority to justify his order regarding the costs of appeal.
He
reasoned as follows:
‘
I
am of the view that we all function in a new constitutional
environment where citizens ought not to be deprived of their rights

to go forward and ventilate them simply because of lack of funds. We
are in a constitutional environment where every citizen now
has a
right to challenge any act of authority on reasonable grounds and in
a case of this kind I am satisfied that an appropriate
order for
costs should be that the municipality bear the costs of appeal and if
I am proved to be wrong certainly those costs will
be reflected in an
appropriate order made in due course by the Supreme Court of Appeal.
The judgment in favour of the applicant
would be otherwise nugatory
if her lack of funds prevented her from defending the judgment.’
Counsel
for the municipality
urged us, as a matter
of principle, to disapprove of the precedent set by the court below,
submitting that such order was ‘grossly
irregular and without
precedent and that the grant thereof constitutes a gross
mis­direction’.
I
n
view of the conclusion to which I have come with regard to the
merits of the appeal, the order of the court below regarding
the
costs of appeal makes no difference in this instance; the
municipality will in any event have to pay those costs. Any comments

that we may make in that regard will therefore be nothing more than
obiter dicta
.
Suffice to
say that, by ordering an
appellant
in anticipando
to pay the costs of the appeal, a lower court in effect fetters the
discretion of a court of appeal, which is undesirable.
Order
The
appeal is dismissed with costs.
B
M Griesel
Acting
Judge of Appeal
appearances
FOR
APPELLANT: V I Gajoo SC
Instructed
by: Ngidi & Company Inc, Durban
Symington
& De Kok, Bloemfontein
FOR
RESPONDENT: A A Gabriel
Instructed
by: Calitz Crockart & Associates, Durban
Matsepes
Inc, Bloemfontein
1
The second to fifteenth respondents, who are the owners of
neighbouring properties, abided the decision of the high court and

took no part in the appeal to this court.
2
Mrs Brooks’ property is, in addition, also subject to a road
servitude in favour of the Drummond Health Committee which
cuts
across the south-eastern corner of the property. This servitude,
however, is unrelated to the present dispute and does not
concern us
in this appeal.
3
1970 (4) SA 78
(C).
4
At 80A–F (other case references omitted).
5
Commentarius
8 3 1.
6
A F S Maasdorp
Institutes of Cape Law
Vol II (1918) p 202.
7
Paras 11–13 above.
8
Para 14 above.
9
24
Lawsa
(2 ed) para 399 and the authorities referred to
therein.