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[2019] ZAWCHC 44
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Meyer v Trustees for the Time Being of the Aurum Mykel Trust (A345/2018) [2019] ZAWCHC 44; 2020 (2) SA 557 (WCC) (29 April 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: A345/2018
In
the matter between:
MARCEL
MEYER APPELLANT
and
THE
TRUSTEES FOR THE TIME BEING OF THE
AURUM
MYKEL
TRUST RESPONDENT
JUDGEMENT DELIVERED ON
29 APRIL 2019
FRANCIS
AJ
INTRODUCTION
1.
The appellant, Marcel Meyer, proceeded with an action in the Knysna
Magistrate’s Court for a final interdict prohibiting
the
respondent, the Trustees for the Time Being of the Aurum Mykel Trust,
from interfering with the appellant’s right of
way allegedly
acquired by implied consent (“Claim A”) and a further
claim, in the alternative, for the registration
of a right of way
servitude allegedly acquired by acquisitive prescription (“Claim
B”).
2.
After considering the evidence led at the trial, the learned
magistrate dismissed both claims and
inter alia
ordered the
appellant to pay the costs of the respondent on an attorney and
client scale based on the Magistrate’s Court tariff.
3.
Claim A was dismissed on the basis that the appellant had failed to
prove an essential element for a final interdict in that
an
alternative remedy was available because the appellant could have
applied for the determination of a right of way.
[1]
Claim B was dismissed on the basis that the appellant had failed to
prove all the requirements for acquisitive prescription, particularly
the requirement relating to the actual use of the servitude concerned
for a continuous and uninterrupted period of 30 years.
4.
The appellant now appeals against the judgement of the learned
magistrate. The appeal is some 8 days out of time. The
appellant made an application to condone the late lodgement of his
appeal which was not opposed by the respondent. This court
is
satisfied that the appellant has made out a case for condonation and,
accordingly, grants the application.
BACKGROUND
5.
The appellant was represented at the appeal by Advocate Jooste and
the respondent by Advocate De Bruyn, both of whom had represented
the
respective parties at the trial in the court
a
quo
.
Both counsel produced comprehensive heads of argument for which the
court is indebted. The court has also had regard to
the Record
of the proceedings in the court
a
quo
,
which included the reports of experts, various sketch maps,
sub-divisional diagrams indicating the cadastral boundaries of the
properties owned by the appellant and the respondent, as well as the
route of the right of way which is in dispute. The boundaries
of the relevant properties and access roads referred to in this
judgement are depicted in the sketch annexed to this judgement
marked
annexure “A”.
[2]
6
The appellant is the owner of Portion 11 of the Farm No. 293,
Plettenberg Bay, Western Cape (hereinafter referred to as “Portion
11” or “the appellant’s property”) and is
marked “293/11” on annexure A. The sub-divisional
diagram for Portion 11 was approved during 1951 and this property was
first registered through sub-division during 1953. Prior
to
being sub-divided, the parent property of Portion 11 was “Lot
57” which was later re-numbered “Farm 293”
when the
sub-division of Lot 57 was approved by the Surveyor-General.
7.
The respondent is the owner of Portion 15 of the Farm 290, The Crags,
Plettenberg Bay, Western Cape (hereinafter referred to
as “Portion
15” or “the respondent’s property”) and is
marked “290/15” on annexure A.
The sub-divisional diagram
for Portion 15 was approved during 1952 and, prior to the
sub-division, the parent property of Portion
15 was Lot 58 which was
later re-numbered “the Farm 290, The Crags” when the
sub-division of Lot 58 was approved by
the Surveyor General.
8.
Prior to being sub-divided, Lot 57 and Lot 58 were adjacent to each
other and, it appears, access to Lot 57 was obtained
via
a
“farm road” which traversed Lot 58. Although a detailed
description of the devolution of Lots 57 and 58 is not evident
from
the Record, it does not appear to be in dispute that both properties
were in separate ownership at the time the sub-divisional
diagrams
were approved and at the time when Portion 11 and Portion 15,
respectively, were registered as separate sub-divisions.
Certainly,
the evidence indicates that the land surveyor who attended to the
sub-division of Portion 11 had consulted with
the adjacent property
owners, including the owner of Lot 58, with regard to the access to
be provided to
inter alia
Portion 11 in the event that the
sub-division was approved by the Surveyor-General.
APPELLANT’S
CASE
9.
The appellant submitted that Portion 11 was land-locked on
sub-division and, accordingly, a tacit or implied servitude of right
of way was created over the respondent’s property in favour of
the appellant’s property in order to access the public
road.
The route of the implied servitude of right of way is marked Y
to Z to W on annexure A (hereinafter referred to as
“the
disputed road”). Without this implied servitude, the appellant
would not have been able to access the public road
from Portion 11;
the public road is depicted between the points X and Y on annexure A.
In any event, so argued the appellant, the
original owner of Lot 57
(the parent property of Portion 11) had even prior to sub-division
used the disputed road, which was the
original farm road that
traversed the respondent’s property, in order to gain access to
Lot 57 and is depicted on the sub-divisional
diagram for Portion 11.
10.
The appellant further avers, in the alternative, that he has acquired
the right to use the disputed road by acquisitive prescription
in
that he and his predecessors in title acted as though they were
entitled to exercise this servitudal right for a combined and
continuous period of more than 30 years (since at least 1953) and
that this use was
nec vi
,
nec clam
,
nec precario
and adverse to the respondent.
11.
Finally, according to the appellant, the respondent interfered with
his right to use the disputed road by digging a trench at
the point
where the disputed road crosses the boundary between the appellant
and respondent’s properties, thereby denying
the appellant
access from Portion 11 to the public road.
RESPONDENT’S
CASE
12.
The respondent denied that Portion 11 was land-locked on sub-division
or that the disputed road even existed at the time Portion
11 was
sub-divided.
13.
According to the respondent, even if the Surveyor-General had
approved the sub-division of Portion 11 on the basis that the
original farm road over Portion 15 (points X to Z to W on annexure A)
would be used to gain access to the public road, this road
is
different from the route of the disputed road. The appellant
tendered no evidence before the court
a quo
to indicate, or
establish, that the disputed road was the route used by the appellant
and his predecessors or that it existed at
the time of sub-division.
This much, according to the respondent, was conceded by Mr
Teggin, the appellant’s expert
witness. Therefore, the
appellant had not proved that the disputed road constitutes the basis
for the servitude by implied consent.
14.
The respondent further averred that the disputed road is not
reflected on the sub-divisional diagram of Portion 15 which was
approved after the sub-divisional diagram for Portion 11 was
approved. If, as submitted by the appellant, the
Surveyor-General
had approved the sub-division of the appellant’s
property subject to access being provided
via
the disputed
road, why was this not reflected on the sub-divisional diagram of
Portion 15? Again, Mr Teggin could not offer an
explanation for the
omission. Finally, the respondent submitted that there was no
evidence before the court as to when the
road Y to Z, which connects
with X to Z to W, was built and when it came into existence.
However, what is certain, and conceded
by Mr Teggin, was that
the road Y to Z did not exist at the time of either the sub-division
of Portion 11 or Portion 15. Therefore,
the road Y to Z cannot
be the basis for asserting a right to an implied servitude.
15.
In so far as the alternative claim relating to acquisitive
prescription is concerned, the respondent denies that such a real
right was created. It submits that, if anything, the
appellant’s predecessors acknowledged that the respondent and
his predecessors had prevented use of the disputed road because the
appellant’s predecessors then built the existing road,
marked Y
to S to V on annexure A, on the appellant’s property which
gives the appellant direct access to the public road
in question. In
any event, so averred the respondent, a portion (Y to Z) of the
disputed road did not exist at the time of
sub-division and no
evidence was led as to when it was created. Accordingly, the
appellant could not, and did not, prove
that the entire length of the
disputed road was used as a matter of fact, and as of right, and
openly, for a continuous period
of 30 years.
ISSUES
16.
In my view, the crisp issues for determination are:
16.1 whether or not the
appellant has proved that a right of way servitude by implied consent
was acquired over the respondent’s
property when Portion 11 was
sub-divided; and
16.2 whether the nature
of the use by the appellant of the disputed road was such that it
satisfied the requirements for acquisitive
prescription.
APPLICABLE
LEGAL PRINCIPLES AND DISCUSSION
17.
Claim A: Right of way by implied consent
17.1 The creation of a
right of way servitude by implied consent can be traced to van
Leeuwen’s
Commentaries
. In
Ridden v Quinn
1909 E.D.S. 373 at 378, the learned Judge President quoted
from a passage in van Leeuwen’s
Commentaries
which reads
as follows:
“
If
a piece of land is divided into two or more portions, the back
portion will retain its right of outlet over the front portion,
even
although nothing was said about this at the time for the partition of
the land cannot impose a servitude upon the neighbours….”
17.2 In essence, the van
Leeuwen principle is to the effect that when a land-locked tenement
(
blockland
) is created by the sub-division of land, a
servitude of right of way is established by implied consent, in
favour of any sub-division
that remains without access to the public
road, over any sub-divisions with access. The van Leeuwen principle
was followed in a
number of decisions such as
Wilhelm Norton
1935 EDL 143
at 169 and
Beukes v Crous en ‘n
Ander
1975 (4) SA 215
(NC) 220A-H. In
Van Rensburg v
Coetzee
1979 (4) SA 655
(AD) at 675 B-C, the then appellate
division of the Supreme Court confirmed that the van Leeuwen
principle forms part of South
African Law.
17.3 The court concluded
in
Van Rensburg v Coetzee
,
supra,
at 673D –
674B, that the van Leeuwen principle would only apply to create a
right of way based on implied consent in sub-division
cases where
such an implied consent ruling makes sense, notably because the
sub-dividing previous owner still owns a portion over
which access is
possible for those portions that are land-locked. Jansen JA
made this comment in light of the cautionary
noted sounded by Kennedy
R in
Matthews v Road Board for the District of Richmond and
Others
1967 (3) SA 244
(N) at 247 F-H where the court stated
as follows:
“
Secondly,
it would seem to me, with respect to the decision in
Riddin’s
case, supra, that what van Leeuwen there had to say is but of small
practical value in a country like South Africa, where vast
tracts of
land, as we know, exist for farming purposes, it would be
impractical, from the distance point of view alone, if any
such an
owner sub-divided his land, to compel the owner of the sub-division
to use the right of way enjoyed by the seller, and
none other, when a
closer and more reasonable means of access is available by the grant
of a way of necessity over a neighbour’s
property.”
17.4 The van Leeuwen
principle is a method of establishing a right of way to gain access
to the public road in sub-division cases
and must be distinguished
from the right of way of necessity. The van Leeuwen principle
rests on implied consent whereas
the normal right of way of necessity
derives from the operation of law and has to be confirmed by court
order, if necessary (see,
Van Rensburg v Coetzee
,
supra,
and the various authorities cited in that judgment).
The significant difference in the creation of a right of way by
necessity
and a right of way by implied consent is that the former
can be established over any servient tenement that gives the required
access to the public road and such access is simply based on
necessity (see,
Van Rhyn, NNO v Fleurbaix Farm (Pty) Ltd
2013 (5) SA 521(WCC))
, whereas the right of way by implied consent is
restricted to a sub-division that is cut off from access to a public
road whilst
other portions still have access to the public road and
all the sub-divisions still belong to the original sub-dividing owner
(for
a useful summary of the cases and a simplified exposition of the
principles underlying the right of way by implied consent see,
AJ Van
Der Walt,
The Law of Servitudes
(2016), pages 341-343, and
354-355).
17.5 It appears to me
that the parties may have misconceived the true nature of the remedy
sought to be relied on by the appellant;
they appear to have
misconstrued a right of way of necessity with the right of way by
implied consent as postulated by van Leeuwen.
The key features
underpinning the van Leeuwen principle is that the sub-divided
portions of the property must be in common
ownership and that the
sub-division of land cannot impose a servitudal burden upon
neighbouring properties. In the matter at hand,
the appellant
certainly did not plead, or by way of evidence demonstrate, that the
requirements for the acquisition of a right
of way by implied consent
were met. For instance, there is no averment whatsoever that
the appellant’s property and
the respondent’s property
were in common ownership at sub-division. On the contrary, it appears
to be common cause that the
properties were in fact in separate
ownership and were sub-divided at different times from different
parent properties. In
addition, the disputed road undoubtedly
imposes a burden on Portion 15. Accordingly, the claim for a
right of way by implied
consent, and the consequential relief sought
for a final interdict to protect this alleged right, must fail. If
the Appellant
was of the view that the disputed road was the only
viable access to the public road, he ought to have pursued an action
for the
determination of a right of way.
17.6 The learned
magistrate’s decision in this regard was thus correct even
though it may have been based on a misconception
of the applicable
legal principles relating to the acquisition of a servitude by
implied consent.
18.
Claim B: Acquisitive prescription
18.1 Acquisitive
prescription in South African law is governed, in the main, by the
Prescription Act 68 of 1969 (“the 1969
Act”), the
Prescription Act 18 of 1943 (“the 1943 Act”), where
applicable, and any rules of the common law consistent
therewith. The
1969 Act came into operation on 1 December 1970 and replaced the 1943
Act but the requirements of the latter Act
applies to prescription
periods running until 30 November 1970. Despite the differences in
definition of acquisitive prescription
in each statute, the
provisions of the two prescription Acts are very similar.
Certainly, the basis for acquisitive prescription
appears to have
been accepted by the courts as being essentially the same in each
enactment
[3]
. The
appellant claims that he has a servitude of right of way over the
respondent’s property by virtue of the utilisation
of the
disputed road from at least 1953, i.e. on subdivision of the
appellant’s property. Thus, both the 1943 and 1969 Acts
are
applicable.
18.2 I do not intend
traversing all the intricate provisions of the law relating to the
acquisition of servitudes by prescription.
Suffice to say, a
servitude can be acquired by prescription if the use of the servient
property was
nec vi
(peacefully),
nec clam
(openly),
nec precario
(the absence of a grant on request), and adverse
to the owner for a period of 30 years (see, section 6 of the 1969
Act,
Bisschop v Stafford
1974 (3) SA (AD) at 10C, and
Ploughman v Pauw
2006 (6) SA 334
(C)). Furthermore,
the alleged acquirer of a servitude of right of way must prove actual
use or exercise of the right of
way, with the necessary intention,
over the duration of the whole prescription period (see,
Forellendam
Bpk v Jaconsbaai Coastal Farms (Pty) Ltd
1993 (4) SA 138
, and
Cillie v Geldenhuys,
supra
,
at
para 15). The use must be such that the alleged acquirer
acted as if he/she was entitled to exercise the servitudal right
(
Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd
1972
(2) SA 464
(W) at 474C).
18.3 With regard to the
nec precario
requirement, the learned judge Theron JA in
Phezulu Private Estate v Metelerkamp
2014 (5) SA 37
(AD), at para 10, commented as follows:
“
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. It
follows that
either express or tacit consent would mean that the alleged acquirer
did not act as if 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 license of the other.
Precarium has
its origin in the fact of the permission usually being obtained by a
prayer
(footnotes omitted)”
18.4 The corollary of the
requirement that the use must be
nec precario
is that the use
must be adverse to the owner. In this regard, Colman J in
Morkels
Transport (Pty) Ltd v Melrose Foods (Pty) Ltd
, supra,
at
para 479A, explained:
“
Without
myself attempting a full definition (which is not necessary for the
purposes of this case), I go so far as to say that no
use, occupation
or possession is adverse, for the purposes of the law of acquisitive
prescription, unless the owner has a legal
right to prevent it.”
18.5 The onus of proving
that acquisitive prescription has taken place is clearly on the
appellant. In his judgement, the
learned magistrate summarised
the appellant’s evidence in support of his claim for
acquisitive prescription as follows
[4]
:
18.5.1
The only contribution towards the aspect
relating to acquisitive prescription by the Appellant’s expert
witness, Mr Teggin,
was that the disputed road probably existed even
before sub-division took place in 1953.
18.5.2
The appellant’s second witness, Mr
Cronje, stated that he bought Portion 11 from Dr Enslin and he sold
it again during 2014
or 2015 to the appellant. He further stated that
the disputed road was pointed out to him by Dr Enslin. Mr Cronje
testified that
he and his partner, Mr Mostert, were present when the
previous owner of Portion 15 told them “that is the road to
use”.
18.5.3
Mr Cronje was the owner of Portion 11 for
approximately 22 to 23 years and he used the disputed road without
interference.
18.5.4
Mr Cronje did not know how long Dr Enslin
owned the property before him and could only state that it was “for
a long time”.
He also testified that the gate on the disputed
road was sometimes locked with a piece of rope, but they could get
through at all
times.
18.5.5
No further witnesses were called by the
appellant.
18.5.6
No witnesses were called by the respondent.
19.
Based on the evidence proffered by the appellant, the learned
magistrate concluded that apart from the fact that the disputed
road
probably existed prior to 1953, no evidence was presented by the
appellant that there was factual use of the disputed road,
and that
it was used peacefully, openly, and in a manner that was
non-precarious or adverse to the owner of Portion 15 for an
uninterrupted period of 30 years.
20.
It is difficult not to agree with the conclusion reached by the
learned magistrate. It is indeed apparent from the record that
the
appellant offered no evidence to support his assertion that he and
his predecessors collectively used the disputed road uninterrupted
for a period of 30 years. The fact that the disputed road may
have existed for 30 years is not proof of actual use and, even
if the
disputed road was depicted on the sub-divisional diagram for Portion
11, this does not automatically convert this road into
a servitude of
right of way (cf.
Werner v Florauna Kwekery BK and Other
2016
(2) SA 282
(SCA) at 291E-F). What was clearly absent from the
appellant’s evidence were details of all the appellant’s
predecessors
in title, whether they had actual or constructive
knowledge of the rights alleged and, if so, how such knowledge was
acquired.
In other words, it was essential for the appellant to show
the historical devolution of the ownership of Portion 11 and that
each
of the persons who acquired it did so with full knowledge of the
appellant’s rights.
21.
It is also not disputed that there was an alternative route from at
least 1974 (Y to S to V on annexure A) that was used in
order to
access the public road from Portion 11. It seems likely, as
argued by the respondent, that the alternative road
was constructed
because of the respondent’s difficulty with the appellant’s
use of the disputed road. This possibility
is underscored by the fact
that the respondent erected a gate through which the disputed road
had to be accessed. This certainly
militates against the
nec
precario
requirement for acquisitive prescription.
22.
There is also an additional reason why the appellant’s claim
for acquisitive prescription must fail. According to the
appellant,
the disputed road was always used on the basis of the implied
consent,
albeit
ascribed, of the owner of Portion 15 given
that Portion 11 was land-locked on sub-division. In my view, the
claimed use of a servitude
route by way of implied consent is
inimical to the requirements of
nec precario
and adverse user.
In
Phezulu Private Estate v Metelerkamp
,
supra,
at para 11, Theron JA stated as follows in this regard, “
it
follows that either express or tacit consent would mean that the
alleged acquirer did not act as if he/she was entitled to exercise
the servitudal right
” (see also,
Morkels Transport
(Pty) Ltd v Melrose Foods (Pty) Ltd,
supra,
at 474A).
23.
For the aforegoing reasons, I am satisfied that the learned
magistrate was correct in his conclusion that the appellant failed
to
discharge the onus of proving that the servitude in question was
acquired by acquisitive prescription.
COSTS
24.
In so far as the issue of costs is concerned, the court awarded costs
on an attorney and client scale, which included the costs
of counsel
but as prescribed in the Magistrates Court Rules. The learned
magistrate also excluded the costs of the respondent’s
expert
witness on the basis that this witness was not called and did not
contribute in any meaningful way towards the decision
reached by the
learned magistrate.
25.
The learned magistrate has not indicated why he granted costs on a
punitive scale. Certainly, none of the parties prayed
for costs
on the punitive scale and there was nothing on the papers which
indicated that the appellant’s claim was vexatious
or frivolous
as envisaged in Magistrates Court Rule 33(8)(c). Generally speaking,
an order for attorney and client costs will not
be granted in the
absence of a special prayer or notice of an application for such an
order (see,
Four Wheel Drive Accessory Distribution CC v Rattan
NO
2018 (3) SA 204
(KZD) at para 69).
26.
Counsel for both the appellant and respondent were
ad idem
that costs should follow the cause and that costs should not be
confined to the tariff as per the Magistrates Court Rules. I
have no reason to disagree. Matters of this sort are not without
difficulty, both at the factual level and as far as the applicable
principles of law are concerned. That the matter was heard before the
magistrate’s court does not necessarily alter the position.
However, I do not see any reason to interfere with the learned
magistrate’s decision with regard to the costs associated
with
the respondent’s expert witness since the latter appears to
have played no active part in the hearing of this matter.
ORDER
27.
In the circumstances, the following order is made:
27.1 The appeal is
dismissed with costs, subject to para 27.2 below:
27.2 The costs of the
action in the court
a quo
will be as between party and party
and will include the costs of counsel.
__________________________
FRANCIS,
AJ
I
agree and it is so ordered.
__________________________
BOZALEK,
J
[1]
Incidentally, the appellant did indeed seek an order for the
registration of a right of way (
via
ex necessitate
)
but this claim was separated earlier on during the proceedings in
the court
a
quo
and
only Claims A and B were adjudicated.
[2]
The
sketch is a smaller scale version of
Appendix
SM7 on page 206 of the Record.
[3]
Cillie
v Geldenhuys
[2008] ZASCA 54
;
2009
(2) SA 325
(SCA) at para 8
.
[4]
Pa
ges
253 and 254 of the Record.