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[2022] ZAFSHC 350
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Weyers v Flemix Property Investments (Pty) Ltd and Another (1437/2022) [2022] ZAFSHC 350 (15 December 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FLYNOTES:
SERVITUDE OF NECESSITY OVER FARM
Property
– Servitude – Acquisition by prescription –
Access to farm from provincial road across two other
farms –
Used by family and labourers for 30 years – Nec precario –
Dispute of fact –Prescription
not determinable –
Servitude of right of way by necessity –
Prescription Act 68
of 1969
,
s 6.
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1437/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
ELIZABETH
MARIA WEYERS
Applicant
and
FLEMIX
PROPERTY INVESTMENTS (PTY) LTD
1
st
Respondent
REGISTRAR
OF DEEDS, BLOEMFONTEIN
2
nd
Respondent
HEARD
ON:
15
SEPTEMBER 2022
JUDGEMENT
BY:
LOUBSER, J
DELIVERED
ON:
15
DECEMBER 2022
[1]
This is an application that concerns the acquisition of a servitude
of right of way
over farm land by means of prescription,
alternatively a servitude of that right of way caused by necessity.
The applicant is a
pensioner and owner of two adjacent farms, namely
the farm S[....] and the farm E[....] in the district of B[....].
These farms
are landlocked and they are surrounded by agricultural
land. The only access route to the farms from the provincial road
known
as
S313
runs through the farm K[....] Rand and then through the
farm T[....]. It appears to be common cause that the Applicant, her
late
husband, their children and their farm workers had used this
access route to reach their farms for a period of more than 30 years.
[2]
The first respondent is the new
owner of T[....], and is opposing the application. The
owner of
K[....] Rand is not opposing the application, and has consented to
the relief prayed for in the Notice of Motion. At its
own request, it
has not been cited as a respondent in the application.
[3]
In the Notice of Motion, the applicant firstly seeks an order
declaring that she has
by way of prescription acquired a servitude of
right of way along the access road mentioned above over the farm
T[....] of the
first respondent. Secondly, she seeks an order
declaring that she has by way of prescription acquired a servitude of
right of way
along the access road mentioned above over the farm
K[....] Rand. Thirdly, and in the alternative, she seeks an order
declaring
that she has a servitude of right of way of necessity along
the access road over the farm T[....], and fourthly. an order
declaring
that she has a servitude of right of way of necessity along
the access road over the farm K[....] Rand.
[4]
In the fifth place, the applicant seeks an order authorising her to
take the necessary
steps to register in the Bloemfontein Deeds Office
servitudes of right of way over the farms T[....] and K[....] Rand
along the
route of the access road. In the sixth place she seeks an
order directing the first respondent to cooperate with her in giving
effect to the order authorising her to register the said servitudes.
Lastly, she seeks an order authorising and directing the second
respondent to register the contemplated servitudes accordingly.
[5]
The acquisition of servitudes by prescription is governed by
section
6
of the
Prescription Act
[1
]
.
In terms of this section, a person shall acquire a servitude by
prescription if he has openly and as though he were entitled to
do
so, exercised the right and powers which a person who has a right to
servitude is entitled to exercise, for an uninterrupted
period of
thirty years.
[6]
The concept of acquisition by prescription is firmly rooted in Roman
and Roman-Dutch
law, as is evident from the wording of the
corresponding section in the earlier
Prescription Act
[2
]
.
Section 2(1)
of that Act provided that acquisitive prescription is
the acquisition of ownership by the possession of another person’s
movable or immovable property or the use of a servitude in respect of
immovable property, continuously for thirty years
nec
vi, nec clam, nec precario
.
This means neither by violence, nor covertly and in the absence of a
grant on request.
[7]
Theron, JA has explained the notion of a precarium as follows in
Pezula
Private Estate v Metelerkamp
[3]
(with
four other Judges of Appeal concurring): “In terms of the
Prescription Act 18 of 1943, the use of the property must
have been
nec
vi,
nec clam, nec precario
for a period of 30 years.
Nec
precario
,
the absence of a grant on request, has been subsumed into ss 1 and 6
of the current Prescription Act by the requirement that the
potential
acquirer of the servitude must act as though he or she was entitled
to exercise the servitudal right. The notion of a
precarium is based
upon the application by one party for a concession which is granted
by the other party; that other party reserving
at all times the right
to revoke that concession as against the grantee in terms of the
particular conditions to which the grant
is subject. Put differently,
a precarium is a legal relationship which exists between parties when
one party has the use of the
property belonging to the other on
sufferance, by leave and licence of the other. Precarium has its
origin in the fact of the permission
usually being obtained by a
prayer.”
[8]
Consequently, this court has to
determine on the application papers before it whether there
is any
evidence of a concession granted to the family of the applicant to
use the access road leading over T[....] during the period
of 30
years. Should it be found that there was such a concession or
permission, then the application cannot succeed on the basis
of
prescription.
[9]
In her founding affidavit the
applicant states that she inherited the two farms from her
late
husband, Lambertus Weyers, who passed away in 2017. He was the
registered owner of the farms since 1985. The 30 years period
was
therefore completed in 2015. When Lambertus Weyers became the owner
of S[....] and E[....], the late mr. Adam Steenkamp was
the owner of
T[....], and he indicated the access route to the farms to mr.
Weyers. There was never any request or agreement that
the Weyers
family could make use of the road over K[....] Rand and T[....].
Later, during about 2006, the daughter of mr. Steenkamp
and her
husband, Guy Stirk, took over the farming operations at T[....]. They
started to make use of a lock at the entrance to
T[....], but they
provided the Weyers family with a key to the lock without any request
having been made by the Weyers family.
The Stirks later became the
owners of T[....].
[10]
The Stirks thereafter rented T[....] out to a mr.
Johan Pretorius and his wife. They installed an electric
gate motor
at the entrance to T[....], causing the gate to open by phoning a
specific cellular number. Mr. Pretorius provided the
Weyers family
with the said number and listed the members of the family as the
persons who could open the gate and gain access
to the route to their
farms. This also happened without any request from the Weyers family
or a concession by mr. Pretorius.
[11]
The Stirk family eventually decided to sell T[....], and the first
respondent became the new
owner, taking occupation of T[....] about
early 2020. That is when the trouble started. According to the
applicant, the first respondent
was well aware of the fact that the
Weyers family and their farm labourers were using the access road to
their farms prior to purchasing
T[....]. Despite having this
knowledge, the first respondent terminated the telephone system at
the gate and replace it with a
remote control system. A
representative of the first respondent informed the Weyers family
that they would not be provided with
a remote control device to open
the gate. They would only be allowed to use the access road under the
supervision of the first
respondent.
[12]
Only after further discussions between the Weyers family and the
first respondent, were remote
control devices provided to the son and
the daughter of the applicant. They found this unacceptable since
they have freely and
openly and as though they were entitled to do
so, made use of the access road since 1985. The situation became
worse after the
funeral of a family member of one of the farm
labourers of the applicant. The farm labourers and their families
were denied access
through the gate of T[....], because the
representatives of the first respondent alleged that the workers
littered and were under
the influence of alcohol. The representatives
then also took back the two remote control devices, and the Weyers
family can now
only gain access to their farms through the
intervention of the representatives of the first respondent.
[13]
Meanwhile, the farm labourers are not allowed to travel on the access
route to the farms S[....]
and E[....]. The only way that they can
travel on the route is if they are accompanied by the son or daughter
of the applicant
in the same vehicle. The applicant is aggrieved by
this situation, as she submits that she has acquired a servitude of
right of
way by prescription in terms of section 6 of the Act.
[14]
The first respondent makes it clear in an answering affidavit deposed
to by its sole director,
mr. Jaco Flemix, that it has no knowledge of
the exercise of the alleged right of way during the statutory 30
years period, since
the farm T[....] was only transferred into the
first respondent’s name on 9 December 2020, that is after the
30 years period.
The first respondent purchased the farm during
November 2019. Mr. Flemix does not deny that he was informed of the
usage by the
Weyers family of the access road running through T[....]
when he negotiated the purchase of the farm.
[15]
Furthermore, mr. Flemix does not deny the arrangements that were made
by the first respondent
to allow access through the gate of T[....]
in broad terms, as alleged by the applicant. He pointed out, however,
that the employees
of the applicant were causing problems at the gate
on different occasions, and that they even removed the gate from its
rail and
broke the rail on one of those occasions. As a result of
these incidents, the relationship between him and the applicant’s
son has eventually broken down. It is for this reason that
representatives of the first respondent took back the remote control
devices from the Weyers family.
[16]
Of far more importance is a supporting affidavit by mr. Guy Smook
that is annexed to the answering
affidavit of the first respondent.
He now lives in Australia, but is the son-in-law of the late Adam
Serfontein, the erstwhile
owner of T[....]. According to mr. Smook,
he accompanied mr. Serfontein from time to time to the farm to assist
with farming activities
since the year 2005. He has read the founding
affidavit of the applicant, and he assumes that the applicant’s
reference to
“Guy Stirk” is actually a reference to
himself.
[17]
In his affidavit mr. Smook says that, from what mr. Steenkamp had
told him, he understood that
the late mr. Weyers used the road in
question with mr. Steenkamp’s permission and consent. During
2009 mr. Smook took possession
of T[....] with full control, although
mr. Steenkamp was then still the registered owner of the farm. Mr.
Smook then undertook
extensive developments on the farm to establish
a game farm by, inter alia, erecting a big entrance gate to the
property. He attached
locks to this gate without providing the
applicant and her husband with a key to the locks of the gate. After
this, the late mr.
Weyers contacted him and asked whether he could
“please provide him with a copy of a key to the entrance gate”
in order
for him to gain entrance to his farm S[....]. According to
mr. Smook, he then agreed on condition that mr. Weyers keep the gate
closed and locked at all times because the farm was stocked with game
of high value. Mr. Weyers agreed to this condition, and mr.
Smook
then provided him with the required key. The farm workers of mr.
Weyers also did not have free use of the road over T[....].
The
arrangement was that if they needed to use the road, they would
inform the farm manager, who would then accompany them on the
road
and open the entrance gate for them. This was the arrangement that
prevailed between 2009 and early 2016.
[18]
In her replying affidavit, the applicant denied the gist of mr.
Smook’s affidavit, and
she annexed no less than five affidavits
by deponents who apparently had intimate knowledge of the
circumstances surrounding the
access road and T[....]. These
deponents were her two children, mr. Christiaan Nigrini of the
adjacent farm K[....] Rand, mr. Leon
Botha, a game capturer residing
in the area, and mr. Cornelius Pretorius, who previously rented
T[....] from the trust controlled
by mr. Smook. In effect, all these
affidavits were aimed at discrediting the allegations made by mr.
Smook as incorrect and untrue,
and confirming the applicant’s
version that she and her family and their employees had freely,
openly and as though they
were entitled to do so, used the access
road during a period of many years.
[19]
The position is therefore that that there is a dispute of fact on the
papers before the court
which goes to the heart of the requirement of
nec precario
. Put differently, there is a dispute between the
parties whether mr. Snook had granted a permission on request of mr.
Weyers to
make use of the access road. If the court were to decide
this question, it will have to consider the probabilities raised in
the
abovementioned replying affidavits filed by the applicant. This
the court cannot do, because motion proceedings are not designed
to
determine probabilities.
[20]
In
National
Director of Public Prosecutions v Zuma
(Mbeki and Another Intervening)
[4]
Harms, DP (as he then was) had the following to say in this respect:
“
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special, they cannot be used to resolve factual
issues because they are not designed to determine
probabilities. It
is well established under the
Plascon-Evans
rule
that where in motion proceedings disputes of fact arise on the
affidavits, a final order can be granted only if the facts
averred in
the applicant's (Mr Zuma’s) affidavits, which have been
admitted by the respondent (the NDPP), together with the
facts
alleged by the latter, justify such order. It may be different if the
respondent’s version
consists
of bald or uncreditworthy denials, raises fictitious disputes of
fact, is palpably implausible, far-fetched or so clearly
untenable
that the court is justified in rejecting them merely on the
papers. The court below did not have regard to these
propositions and instead decided the case on probabilities without
rejecting the NDPP’s version.”
[21]
Without considering the probabilities in the present case, I have no
reason to find that the
version of Mr Smook raises fictitious
disputes of fact, is palpably implausible, far-fetched or clearly
untenable. In the premises,
and in terms of the
Plascon
Evans
rule, the question of
nec precario
must be
adjudicated on the version put up by the respondent, as conveyed by
Mr Smook. This is one of the pitfalls of proceeding
by way of
application and not by way of action proceedings. The application for
a servitude based on prescription can therefore
not succeed.
[22]
The next question is then whether the applicant is entitled to a
servitude of right of way based
on necessity, in the alternative. As
mentioned earlier, the owner of K[....] Rand has no objection to such
a servitude being granted
as far as the present access route
traverses K[....] Rand from the provincial road to the gate of
T[....]. The owner of T[....],
namely the first respondent, objects
to such a servitude being granted in respect of the rest of the
access road which traverses
T[....] from that gate up to the entrance
to S[....].
[23]
I have already indicated at the outset that the present access road
to S[....] and E[....], which
traverses T[....], is still the only
road that give access to S[....] and E[....]. These two farms,
belonging to the applicant,
is geographically enclosed and has no
other way out. It is in respect of this access road that the
applicant seeks a servitude
of right of way by necessity. The road
has been used for many decades by the owners of S[....] and E[....]
to access their property.
[24]
Since the applicant has shown that the right of way that she seeks is
necessary in the present
circumstances to provide access to the
public road, the court may grant a right of way over the property of
the non-consenting
owner.
[5]
In terms of the common law such right of way must be established over
the neighbouring property along the shortest route
to the public road
and where it will cause the least damage or discomfort to the
servient owner.
[6]
In the matter of
English
v CJM Harmse Investments CC and Another
[7]
it was stated, however, that the mere fact that an existing route is
simply longer or more inconvenient than a right of way over
the
neighbours property would be, is not a ground for granting that right
of way. As for the requirement of the least damage or
discomfort, it
has been said that, in many instances, it would mean that the use of
an existing road is preferable to the building
of a new one.
[8]
In every case the court must find an equitable balance between the
interests of the dominant and servient owner.
[9]
This court is also mindful of the fact that it was stated in
Van
Rensburg v Coetzee
,
supra, that the maxim of “shortest route and least damage”
does not lay down an inflexible rule, because circumstances
could
dictate otherwise.
[10]
[25]
With these principles in mind, it is necessary to refer to the main
defences raised by the first
respondent. The first respondent says
that an alternative and shorter route is available to the applicant,
namely one over the
adjacent farms K[....] Rand and Swartlaagte up to
the farm S[....] of the applicant. The first respondent has attached
a sketch
plan by a land surveyor to prove his point. This sketch plan
shows that the proposed alternative route is indeed 279 metres
shorter
than the existing access road. This measurement, however,
does not take into account that the farm E[....] of the applicant
lies
on the other side of S[....], viewed from the point where the
proposed route would enter S[....].
[11]
The sketch plan shows that the existing route enters the farm S[....]
at a point much nearer to the dividing line between
S[....] and
E[....]. The result is that it is uncertain whether the proposed
route will provide shorter access to the two farms
of the applicant.
In any event, I regard the distance of a mere 279 metres as a
distance that should not play a significant role
in this matter.
[26]
In addition, there is no existing road on the proposed route, and
some works will be necessary
to make that route fully accessible for
vehicles, trucks and farm implements. This is in stark contrast to
the existing route which
has been in use for decades as the only
access road. The first respondent was aware of this fact when he
purchased T[....].
[27]
The first respondent alleged that the applicant’s son is
already making use of the alternative
route. According to the son,
this happened on only one occasion when he could not gain access to
the existing route.
[28]
What seems to be common cause between the parties is that the members
of the applicant’s
family only visit the farms S[....] and
E[....] on very rare occasions. According to the first respondent,
the applicant has never
visited her farms since the first respondent
took occupation of T[....] more than 2 years ago. According to the
applicant, she
lives in a retirement home in Bloemfontein, and she
was born in 1942. Her son is also living in Bloemfontein where he is
an orthopaedic
surgeon. The daughter lives in Bayswater,
Bloemfontein. It is therefore clear that the family of the applicant
will not cause any
inconvenience of significance to the first
respondent should a servitude on the existing access route be
granted.
[29]
At the same time, it is clear to this court that the employees of the
applicant is a cause of
concern as far as their use of the existing
route is concerned. I have already referred to problems between the
employees and representatives
of the first respondent when they
wanted to use the access gate to T[....]. On the papers before me, at
least one of them lives
permanently on S[....].
[30]
In my view, the issues around employees cannot stand in the way of
granting a servitude on the
basis of necessity, because such issues
can and must be resolved by the parties in a spirit of cooperation
and understanding. Those
issues are simply far outweighed by
considerations such as practicality and finding an equitable balance
between the interests
of the applicant and the first respondent. The
fact remains that the present access road is the only serviceable
route to the landlocked
farms S[....] and E[....], and it has been
there for decades. The application for a servitude on the road
therefore has to succeed.
[31]
When such a servitude is granted on the basis of necessity, a
plaintiff or applicant should offer
a particular amount as
compensation for consideration
[12]
,
because a kind of expropriation is involved. This the applicant has
done. She mentions that the access road is merely a two spoor
road,
and that she does not have a problem in continuing to make use of the
road as it is. She further mentions that the proposed
servitude is 6
metres wide and stretches over approximately 1.9 kilometre. It
therefore comprises 1.14 hectares. Having regard
to the price per
hectare when first responded purchased T[....], she submits that an
amount of R5 700.00 is reasonable compensation
for the servitude, and
she tenders same. She further mentions that the first respondent also
makes use of this road to gain entrance
to the house and other
buildings on T[....], for a distance of approximately one kilometre.
[32]
In the premises, the following orders are made after due
consideration of all the facts and circumstances:
1.
It is declared
that the applicant, as owner of the farms S[....] No [....] and
E[....] No [....], district of B[....], Free State
Province, has a
servitude of right of way by necessity along the route marked A, B,
C, D, E, F and G on the sketch plan annexed
to the founding affidavit
as Annexure X1 over the property of the first respondent known as the
farm T[....] No [....], district
of B[....], Free State Province.
2.
It is declared
that the applicant, as owner of the farms S[....] No [....] and
E[....] No [....], district of B[....], Free State
Province, has a
servitude of right of way by necessity along the route marked A to B
on the sketch plan annexed to the founding
affidavit as Annexure X2
over the property known as Portion 2 of the farm K[....] Rand No
[....], district of B[....], Free State
Province, registered in the
name of the Chrismar Besigheidstrust.
3.
The applicant
is authorized to take all steps necessary to register in the
Bloemfontein Deeds Office the servitudes of right of
way over the
aforesaid property of the first respondent and over the property
known as Portion [….] of the farm K[....]
Rand No [....],
district of B[....], Free State Province, along the routes indicated
on the sketch plans annexed to the founding
affidavit as Annexures X1
and X2.
4.
The first
respondent is ordered and directed to cooperate with the applicant,
to make available the Title Deed of the property T[....]
and, to the
extent necessary, to ensure that its director cooperates with the
applicant and signs all and any documentation that
may be necessary
to give effect to the order in terms of paragraph 3 above.
5.
The second
respondent is authorized to register the servitudes referred to in
paragraphs 1 and 2 above in the name of the applicant,
as owner of
the farms S[....] No [....] and E[....] No [....], district of
B[....], Free State Province.
6.
The first
respondent to pay the costs of the application on the party and party
scale.
P.
J LOUBSER, J
For
the Applicant:
Adv. J. Els
Instructed
by:
McIntyre van der
Post Inc.
Bloemfontein
For
the First Respondent:
Adv. P.J.J. Zietsman SC
Instructed
by:
Muller Gonsior Inc.
Bloemfontein
[1]
Act 68 of 1969
[2]
Act 18 of 1943
[3]
2014 (5) SA 37
(SCA) at par [10]
[4]
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at
[26]
[5]
Aventura
Ltd v Jackson N.O. and Others
2007 (5) SA 497
(SCA) at par [8]
[6]
Van Rensburg v Coetzee
1979 (4) SA 655
(A) at 675 C
[7]
2007 (3) SA 415
(N) at 419 B
[8]
The Law of Servitudes, AJ van der Walt, p357
[9]
Van Rensburg v Coetzee, supra, at 675 E-F
[10]
At 672 H
[11]
See annexure FPI 2.1 on page 132 of the papers. The existing route
is marked in red, and the alternative route in blue and green.
[12]
Van Rensburg v Coetzee, supra, at 677 H