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2017
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[2017] ZALMPPHC 8
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Lombard and Others v Go Lokile Farm (Pty) Ltd and Others (3701/2016; 4987/2016) [2017] ZALMPPHC 8 (25 May 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED.
25/5/2017
CASE NO: 3701/2016
&
4987/2016
In
the matter between:
P
LOMBARD
FIRST
APPLICANT
LJ
ENGELBRECHT
SECOND
APPLICANT
EATING
HABITS (PTY)
LTD
THIRD
APPLICANT
and
GO
LOKILE FARM (PTY)
LTD
FIRST
RESPONDENT
LL-L
INVESTMENTS (PTY)
LTD SECOND
RESPONDENT
JJPC
BRAND
ADMINISTRATORS
THIRD
RESPONDENT
THE
TRUSTEES OF TIME TO TIME OF THE FOURTH
RESPONDENT
PIETER
FOURIE JUNIOR TRUST
BASIE
BRAND FIFTH
RESPONDENT
CARL
D
PLESSIS
SIXTH
RESPONDENT
ROAD
AGENCY
LIMPOPO SEVENTH
RESPONDENT
THE
MEC: DEPARTMENT
OF EIGHTH
RESPONDENT
PUBLIC
WORKS, LIMPOPO
JUDGMENT
MAKGOBA
JP
[1]
The Applicants
brought an application against the Respondents seeking an order in
the following terms:
1.1.
An
order to declare that the disputed road marked in red on the map
which is annexed to the founding affidavit and which appears
on page
63 of the paginated papers is not a public road;
1.2.
It is
declared that the existing road over the aforementioned farms is to
be replaced by the road depicted with blue line on the
sketch plan
attached to the founding affidavit as “NOM1” (“the
alternative road”);
1.3.
The
alternative road referred to on paragraph 3 above shall be not
less than 4 meters wide;
1.4.
The
alternative road will be constructed by the Third Applicant
at its own costs;
1.5.
None
of the Respondents will be entitled to use the existing road once the
alternative road has been completed;
1.6.
It is
declared that the Applicants, through their attorney or otherwise,
will inform in writing all the parties to this application
once the
alternative road is completed and from the 1
st
of the month commencing after delivering of the letter to the
Respondents a permanent interdict shall be granted preventing and
restraining the use of the existing road;
1.7.
The
Third and Fifth Respondents and all those holding under them are
interdicted and restrained not to use the unlawful access point
on
the corners of the farms:
1.7.1.
REMAINDER OF THE
FARM KWAGGADRAAI NO. 137, REGISTRATION DIVISION L.R, LIMPOPO
PROVINCE;
1.7.2.
REMAINDER OF THE
FARM RUSLAND NO. 136, REGISTRATION DIVISION L.R, LIMPOPO PROVINCE;
1.7.3.
THE FARM
VENTERSDRAAI NO. 153, REGISTRATION DIVISION L.R, LIMPOPO PROVINCE;
1.7.4.
REMAINDER OF THE
FARM WATERVAL NO. 151, REGISTRATION DIVISION L.R, LIMPOPO PROVINCE;
which is the corner of
the farms depicted with a red line on the photograph attached to the
founding affidavit as annexure “P”;
1.8.
The
Fifth Respondents is interdicted and restrained not to steal or to
damage any of the Third Applicant’s property;
1.9.
No
costs order is requested against any of the Respondents, unless this
application is opposed without success. In the event of
opposition by
the Third and / or Fifth Respondents the Applicants reserve the right
to request a punitive costs order on the basis
of attorney and own
client costs;
1.10.
No
order or costs order is sought against the Seventh and Eight
Respondents.
[2]
The Applicants have abandoned the order sought in prayer 1.7 of the
Notice of Motion.
[3] The subject matter of
this dispute concerns a gravel road (“the road in dispute”)
that links various farms owned
by the parties to this dispute, to the
tarred provincial road between Marken and Baltimore in Limpopo
Province. The gravel road
in dispute runs from the aforesaid
provincial road (R561) to the farm Ventersdraai, and over
Ventersdraai and the adjacent farm
Morningstar.
[4]
This application was originally launched in the North Gauteng High
Court, Pretoria during 2012. When the matter was launched
there were
six Respondents. The Seventh Respondent, the Road Agency Limpopo
(Pty) Ltd and the Eighth Respondent, MEC Limpopo: Department
of
Public Works, were subsequently joined. By agreement between the
parties and by order of the North Gauteng High Court, Pretoria
the
matter was transferred for hearing in the Limpopo Division,
Polokwane. The Seventh and Eighth Respondents do not oppose this
application. They have however filed the reports regarding the status
of the road in dispute, that is whether the road is a public
road or
a private road.
[5]
It is significant to state that an
inspection in loco
was held
at all the farms involved in the dispute on the 10 May 2017. At the
inspection in loco
the Court as well as the parties had an
opportunity to acquaint themselves with the location of the farms,
the road in dispute and
the proposed alternative road. Therefore, the
factual matrix in this case will be augmented by the observations
made by the Court
at the
inspection in loco.
[6] The parties to this
dispute are owners of the properties / farms adjoining the road in
dispute. As is clear from the affidavits
herein, the main
protagonists are the Third Applicant which acquired the farm Waterval
in July 2010, and the Third and Fifth Respondents,
who are
collectively referred to as “the Brand family” and are
owners of the farms Ventersdraai and Kwaggadraai. The
various
disputes before this Court stem from the desire of the Third
Applicant to re-route the existing road that has been used
by the
Brand family for decades.
[7]
The Third Applicant effectively seeks to relocate the existing road
which runs through its farm Waterval and replace same with
an
alternative road at its own costs. This is opposed by the Brand
family on the basis that the existing road is a public road
and far
from being convenient, its relocation would involve prejudice to the
Brand family; alternatively they contend that the
Brand family as the
owners of the dominant tenements Kwaggadraai and Ventersdraai, have
acquired ownership of a praedial servitude
in the form of a defiant
right of way over the relevant farms up to the main road, R561.
Furthermore, they contend that the relocation
of the existing road
will entail prejudice in the form of substantial expense.
[8]
The Third Applicant’s case is that the Third and Fifth
Respondents (“the Band family”) are using a road which
runs over the farms belonging to the Applicants and over a farm owned
by the First Respondent. The Applicants were unable to find
proof
that a real right exists for the Brand family to use this particular
road which runs over the said farms. The Applicants
contended that
even if there exists some or other right for the Brand family to use
the particular road, then, given the facts
and circumstances in this
matter, the Applicants request the Court to order an amendment of the
path or route of this road so that,
in essence, the road should run
against the boundry lines of the farms affected by the road. The
manner in which the road is used,
and the location of the road as
such, are, according to the Applicants, affecting negatively the
property interests of the Applicants
and certain of the Respondents.
What is proposed is that the alternative road be made available so
that the alternative road should
substitute the existing road.
[9]
The issue about the road is the first issue in this application. The
second issue is the unlawful use, as a point of access,
of a portion
of another property vesting in the Brand family. This specific point,
which is the boundry point between four different
farms is, according
to the Applicants, used as an unlawful access point by the persons
occupying and in charge a property vesting
in the Brand family. In
this regard an interdict is sought by the Applicants to stop the
alleged unlawful activities. This interdict
is sought in prayer 1.7
of the Notice of Motion which has since been abandoned by the
Applicants – See [2] above. The third
issue in this matter is
the alleged intentional vandalism and malicious damaging of the
property belonging Third Applicant. An
interdict is also sought
against the Brand family in this regard.
[10]
There is a map attached to the founding papers, as Annexure “D”,
which depicts the location of the road in relation
to the various
farms over which it runs. Over and above that, the Court held an
inspection in loco
and can confirm that the area is correctly
depicted on the said attached map.
[11]
The road exits from the tarred public road onto the Remaining Extent
of the Farm Morocco No. 143 LR (“Morocco”).
It is a
gravel road. The First Respondent is the registered owner of Morocco
and supports the relocation of the existing road.
From Morocco the
road enters Lusthof Portion 1 (“Lusthof 1”) a farm of
which the First Applicant is the registered
owner. The road runs
alongside the extreme boundries of Morocco, but it enters Lusthof 1
at a point which is not on the boundry,
so that the road cuts through
a portion of Lusthof 1. From Lusthof 1 the road enters the Remaining
Extent of Lusthof 150 LR (“Lusthof”)
of which the Second
Applicant is the registered owner. The road also does not run along
the boundry ends of Lusthof but cuts through
Lusthof and proceeds
into Waterval 151 LR (“Waterval”) of which the Third
Applicant is the registered owner. It also
does not follow the outer
boundries of Waterval, but cuts through the farm until it reaches
Ventersdraai.
[12] The Applicants and
the First Respondent tender an alternative location for the road,
which they contend is more convenient
and safer. The alternative road
is depicted with a blue line on Annexure “D” as against
the existing road which is
depicted in a black line on Annexure “D”.
The Applicants contended that there is no right registered against
any of
the title deeds of any of the relevant properties which allow,
in the form of a servitude or otherwise, the use of the relevant
road
in the manner as is currently being used.
They contend further that
as a gesture of goodwill, and to maintain good neighbour
relationship, they tender a suitable, more convenient
and safer
alternative route.
[13]
Again with reference to the map, the alternative road is described
herein. What the Applicants and the First Respondent propose
is that
the current / existing road, with reference to its route, be amended
so that instead of turning towards the right and running
alongside
the boundry of Lusthof 1 and Morocco, the road be extended straight
forward so that it runs continuously, without turning
right, within
the boundry of Lusthof 1 alongside Lusthof and Portion 2 of the Farm
Buuren 154 LR (“Buuren 2”), thereafter
within the boundry
of Portion 1 of Waterval 151 LR (“Waterval”) and
alongside the boundry between Waterval 1 and Portion
3 of the farm
Buuren 148 LR (“Buuren 3”) towards the point where tha
farms Buuren 3, Waterval 1, Ventersdraai, Remainder
of the farm
Paalkraal 152 LR (“Palkraal’) and Portion 3 of the farm
Paalkraal 152 LR (“Paalkraal 3”) meet
and from there into
Ventersdraai.
[14]
The Applicants are prepared to establish and construct such a road at
their own costs, without burdening at all the owners,
occupiers or
users of Ventersdraai. The Applicants propose, in addition, that this
substitute road be enclosed and fenced off so
that there is no need
for gates, as is presently the case, to be opened and locked at
various different boundry points between
the farms.
[15]
The Applicants explain that the purpose of the application is not to
deprive the owners, occupiers or users of Ventersdraai
of a road to
reach Ventersdraai, but to establish, in the interests of all
concerned, an alternative route which would curtail
and avoid the
many undesirable consequences and features of the road as it is
currently used. The following are some of the disadvantages
caused by
the current / existing road:
15.1.
The location of the current road poses a serious security threat in
that the road runs close to not less than six residential
dwellings;
15.2. The road poses a
problem in the sense that it provides uncontrolled access to persons
who have no business and / or right
to be on any of the farms. It is
thus difficult to ascertain whether the person so entering on the
road do so for a legitimate
or illegitimate purpose;
15.3.
There is uncontrolled use of the road. As the road in its current
format does not run along the extreme outer boundries of
the farms,
there is a number of gates which are supposed to serve as a
controlled access and exit point. However, the gates are
not locked,
thereby constituting a breach of security;
15.4.
Another disadvantage of the existing route of the road is that it
runs very close to boreholes, pumps and other
water drinking
facilities. The Third Applicant alleged that it suffered sabotage on
engines used to pump water. Petrol was added
to the diesel engine,
and diesel to the petrol engine. It cost a great expense to overhaul
the engines.
[16]. The Applicants
allege that there are many adverse consequences flowing from a road
dividing a farm in half. In this regard
it contended that,
inter
alia
:
16.1. It is practically
undesirable to have a road, used by other persons, running in the
middle of a farm. It makes the management
more difficult and the
control less effective. A road at the end of the farm, next to the
boundry line, is far more desirable;
16.2.
All the Applicants and the First Respondent derive their income on
the farms from hunting activities. A road which divides
a farm in two
is highly undesirable and in fact unsafe from a hunting perspective;
16.3.
The farms are not fenced or camped in the inside portion. This allows
game to roam free right across the entire farm. This
poses threat for
game running over the farm and striking accidentally motor vehicles
which may drive on the road.
[17] In contradistinction
to the disadvantages of the existing road, the Applicants contended
that there are in fact attractive
advantages in the alternative road
and these are:
17.1.
The farms will not be divided by the road and all the disadvantages
mentioned earlier will fall away;
17.2.
The new road would be much faster and is in fact shorter. The
existing road has a distance of 11.04 km from the public road
to the
entrance gate to Ventersdraai. The distance of the new road would be
only 7.75 km to the new point of access;
17.3.
The Applicants tender to fence off the alternative road at their own
costs. This would have the result that there will not
be unnecessary
obstacles such as gates that have to be closed and opened. The
necessary passage way will be fenced off and users
of the road will
be able to travel safely.
[18] After the Third
Applicant acquired Waterval in July 2010 attempts were made to meet
with the representatives of the Brand family
in order to discuss a
possible alternative road. This attempts were unsuccessful as the
Fifth Respondent contended that any alternative
proposed road would
be sandy. The Third Applicant further discussed the possibility that
the gates be locked. This suggestion too
did not find favour with the
Fifth Respondent.
On
15 December 2010 the attorney representing the Applicants wrote a
very comprehensive and detailed letter (Annexure “K”
to
the founding papers) to the Third and Fifth Respondents (the Brand
family) and motivated the relocation of the road. The Applicants
had
difficulty in serving the said letter on the Brand family but it
appears that they ultimately received the letter. During further
discussion with the Brand family the latter again raised the point
that the proposed alternative location of the road would run
over
portions which are too sandy.
[19]
The Applicants then requested a qualified civil engineer, Mr Jock
Pretorius, to visit the farms and to do a comparison of the
upper
soil types of the existing road in comparison with that of the
proposed alternative route. He was particularly requested
to
physically visit the location and route of the new proposed
alternative road and to verify whether there is merit in the
complaint
raised by the Fifth Respondent to the effect that parts of
the alternative road would be too sandy.
[20] Mr Pretorius then
visited the scene and compiled a comprehensive expert report. In the
report the engineer
inter alia
stated:
“
An
evaluation of the proposed alternative route indicated
that it was comprised of the same sandy gravel soil structure,
and
possessed the same dense to medium dense micro structure as the
existing road. It is thus our opinion that if the road through
farm
Waterval is relocated to the proposed new position, the level of
service would remain the same.”
And furthermore:
“
In
our opinion the riding surface of the new proposed servitude road is
better equipped for traffic than the existing road. There
will thus
not be a reduction of the level of service if the road is relocated
to the south eastern boundry of the farm Lusthof
and farm Waterval.”
[21]
It is clear from the expert report and the opinion of Mr Pretorius
that there is no difference whatsoever and that, according
to him,
the alternative route is even better for purposes of a road than the
existing one.
Cadet questio
the issue of the sandy alternative
road.
[22]
In view of the Fifth Respondent’s unsubstantiated allegations
that the soil would be too sandy at the spot where the
alternative
road is suggested, the Applicants requested another expert, Mr Tjaart
De Beer, to do a more comprehensive investigation,
on this occasion
with reference to scientific tests. Mr. De Beer collected 12 samples
of soil at the depths between zero and 300
mm from 6 sample pits. The
samples were taken at different positions but covering both the
existing road and the road on the new
proposed route.
The samples were
then delivered at Matrolab Group (Pty) Ltd in Pretoria with the
request to perform tests on the soil conditions.
From the results it
is clear that according to the scientific tests there are no
differences whatsoever in the soil conditions
on the existing road
compared to the proposed new location of the road.
[23] Further objections
raised by the Brand family against the relocation of the existing
road are:
23.1.
The existing road is a public road;
23.2. The relocation of
the existing road will be costly to them;
23.3.
Environmental impact.
[24]
The issue as to whether the existing road is a public road will be
dealt will fully later in this judgment.
[25]
The Brand family contends that the aspect of costs for construction
of the alternative road is a factor which must be taken
account and
which cannot justify the deviation of the existing road. The Third
Applicant has already tendered all costs associated
with the
construction of the alternative road – See prayer 1.4 of the
Notice of Motion. The objection raised by the Brand
family based on
this ground is therefore flawed.
[26] The Brand family
relies on an environmental report compiled by one Mr. GJ De Klerk to
the effect that:
(a)
The road will have a negative impact on the pan;
(b)
The road will impact on the bullfrogs;
(c)
Protected trees will be affected.
This
report of Mr. De Klerk was crashed and rendered of no value by a
scientific report of a renowned Environmentalist, Dr Gwen
Theron who
opined that De Klerk did not present a scientific study
and that his observations are without any substantiated
scientific
proof.
[27] Dr Theron’s
opinion is that:
(a)
According to standard engineering practices, the road
can
be lifted above the pan with adequate culverts and
drainage pipes be
installed that can ensure the pan is
not
impacted and is retained;
(b)
The bullfrog is no longer a protected species. In any
event during
construction the bullfrogs can be lifted from
the
pan, held in a safe area and relocated to the pan after
construction;
(c)
The road can be taken around the trees and where not
possible the trees
can be removed with a tree permit
from
DAFF. The requirements of such permit is usually the replanting of 3
trees of the same species of each tree
removed.
[28] At the hearing of
this matter Counsel were directed to focus on the following issues
which in my view are regarded as crucial
to the resolution of the
dispute between the parties in this matter:
28.1.
Is the existing road a public road or a private road?
28.2.
If
the Court finds that the existing road is not a public road, on what
basis should the 3
rd
and 5
th
Respondents persist on the use of the existing road, moreso that the
Applicants has tendered providing an alternative road at own
expense?
28.3.
It
appears the existing road is not being used by the Respondents on the
basis of a registered servitude. On what basis do the Respondents
claim their right to use the existing road?
28.4.
Do
the 3
rd
and 5
th
Respondents as owners and / or residents of the farms, Ventersdraai
and Kwaggadraai presently not have any alternative access road
to the
main public road, Marken-Baltimore or any other public road?
28.5.
Does
any statutory authority or any relevant state functionaries have any
authority or jurisdiction to regulate or make any determinations
regarding the use of a private road?
Whether
the existing road is a public road or a private road
[29]
When this matter was still before the Gauteng Division, Pretoria it
came before Mothle J on 14 March 2016. The Learned Judge
ordered the
then already joined Seventh and Eighth Respondents to file a report
on the status of the road. The Applicants and the
Brand family were
afforded an opportunity to make submissions to the Seventh and Eighth
Respondents and they did so. The
Seventh and Eighth Respondents
concluded that the road is not a public road.
[30] The pronouncement of
the Seventh Respondent in this regard is noteworthy:
“
17.
It can be accepted that the existing road was not
declared a
public road in the Provincial Gazette
by
the Administrator. If it was so declared the Brands
would have
submitted the proclamation in the Provincial
Gazette”
The
Seventh Respondent concludes:
“
22.
For the reasons set out above, it is clear that the public
at large does
not have a right to use the existing road
and
it therefore does not fall within the definition of
public road. ”
[31]
The Seventh and Eighth Respondents stated that they refrain from
becoming involved in a private dispute between neighbours
by
supporting the relocation of the existing road or not. This then
answers the question I raised in my directive (Item 5) as to
whether
any statutory authority or state functionary have any authority or
jurisdiction to regulate or make any determinations
regarding the use
of a private road. The answer to the question is therefore no.
[32]
In his opposing affidavit the Fifth Respondent stated that it is
common cause that the road under consideration has been a
public road
as defined in the Roads Ordinance 22 of 1957 since the early 1980’s
and has been in use since the early 1900’s
at the latest. The
Roads Ordinance upon which the Fifth Respondent relies has been
repealed and substituted with, in this instance,
the Limpopo Roads
Agency Proprietary Ltd and Provincial Roads
Act,
7 of 1998 (‘the Provincial Act”).
[33] In the repealed
Ordinance a public road was defined as follows:
“
Public
road means –
(1)
Any
road declared as such under this Ordinance , or designated as a
public road under this Ordinance or any other law, and includes
any
temporary deviation thereof;
(2)
Any
road, however created (not traversing any land proclaimed under or
for the purpose of any law relating to mining for precious
or
base metals or precious stones, or land held by any person
under mining title as by such law defined) which has been in
the
undisturbed use of the public during a continuous period of not less
than 15 years”
Section
5(2) of the repealed Ordinance required from the erstwhile
Administrator of the province to declare a road by notice in
the
Provincial Gazette.
[34]
In causa
, notwithstanding a very comprehensive search and
investigation into the matter and with the assistance of expert town
planners,
neither the Applicants nor this Court were able to procure
any proof that the road in issue herein was declared by the
Administrator
to be a public road.
[35] The expert, Mr Gawie
Makkink, a Town Planner, filed a report wherein he states that his
investigations were carried out by:
35.1. Discussions with
relevant Officials from the Road Agency Limpopo;
35.2. Perusal of the
records of the Surveyor General;
35.3. Perusal of the
records of the Registrar of Deeds; and
35.4. Perusal of the
records of the Government Printers.
The
expert concluded that he is of the opinion that the road under
consideration does not hold the status of a public road. According
to
him the road serves a function of an access road that traverse
several farms to provide access to certain farm portions.
[36]
I am of the view that the Applicants were able to rule out the
possibility that the road was declared a public road. In the
circumstances the only possible basis upon which the road could have
attained the status of a public road is if the road was in
the
undisturbed use of the public during a continuous period of not less
than 15 years. Even in this context the public means the
general
public using the road and not only the limited number of persons that
would use the road to gain access to the relevant
farms.
[37]
In my view and given the location, this particular road was never
used by the general public, for there would be no purpose
in doing
so. The public utilizes a road to move to a destination or from one
point to another. As far as this road is concerned,
there is no
public destination at the end of the road. It is common cause on this
papers and also on the
inspection in loco
that the gate which
provides access to Ventersdraai, at the end of the road, between
Ventersdraai and Waterval, remains always locked
with a lock and
chain.
[38]
For the aforegoing reasons I agree with the Applicants’
submission that the road could also not have been rendered a
public
road through continued use by the public for 15 years uninterrupted.
[39]
The enquiry as to whether the relevant road is a public road or not,
should be embarked upon in two stages. The first stage
is an
investigation as to what the law regards as a public road and,
secondly, there should be a factual enquiry in relation to
this
specific road and the relevant facts and to then apply the facts to
the legal principles. I proceed to deal with the legal
aspects of
what is required by law for a road to be a public road. A number of
judgments are for assistance in this regard.
[40] In
Rex v. Erasmus
1947 (3) SA 568
(T)
the accused was charged with contravention of
certain provisions of the then Transvaal Road Ordinance, 9 of 1933,
in that he caused
a fence to be built across a road said by the crown
to be a public road. The then Ordinance,
inter alia
, defined a
public road as meaning any road or path, however created, which has
been in the undisturbed use of the public or which
the public has had
the right to use during a period of not less than 15 years. The Court
came to the conclusion that the relevant
road was not a public road
and,
inter alia
, commented as follows at 570:
“
The
common sense of the matter is this: whoever used it in the past,
whether Europeans or natives, used it in the way that a thousand
or
ten thousand other farm roads are used in the Transvaal today; it is
not a road leading from anywhere to anywhere, except from
the main
road to this farm. That being the case, it does not matter whether it
was used for 2, 15 or 35 years; it never did acquire
the character of
a public road and was never used by the public at large.
Our
attention was drawn by Counsel for the crown to the case of
Wilhelm
v. Norton
(1935, EDL 143)
and on p.163 the Learned Judge who gave
evidence in this case refers to the ‘Stonehenge case’. In
that case Farewell
J said that the cases establish that the public
road is prima facie a road that leads from one public place to
another public place,
a remark with which I entirely agree and which
would seem to be in accordance with common sense and the use of the
word ‘public’.
Then he goes on to say: “But the
want of a terminus ad quem is not essential to the legal existence of
a public road. I quite
agree. It is possible that there may be a road
leading to well - known spot – a well – known place of
recreation or
amusement – and the public have been, in the
course of many years, accustomed to go to that spot; it may even be a
picnic
or camping ground that may convert it into a public road
because it is used by the public at large.
In the present case,
if people go to that farm presumably they want to visit that farm; if
they were natives, we must assume that
they were farm natives who use
the road to get on the main road. There is nothing, therefore, in the
evidence which shows us that
the road was used as a public road by
the public at large. Its user, when it was of a general character,
was by these farm people
themselves.”
On
appeal the Court set aside the conviction of the accused and held
that the relevant road was not a public road. The guiding principles
set in
Rex
v. Erasmus
supra
were thereafter followed in a number of subsequent cases in which the
Courts had to decide whether a road is a public road
or not.
[41] The principles in
Rex v. Erasmus
were applied and followed in
Roos v. Mossop
1952 (1) SA 8
(T)
. In the
Roos
matter, supra, the
Respondent, who was the Plaintiff, sued the Appellant for damages for
trespass. Following
Rex v. Erasmus
Steyn J, with whom Price J
agreed, held as follows at p.13:
“
What
the Defendant has to show, therefore, is that members of the public
at large have used this road as a matter of general right
and that it
is not merely certain individuals who have found it convenient to do
so for a more limited purpose in going from the
one to the other
because they happened to reside on the adjoining farms. He must
further show regular use by the public, that is,
use in each of the
15 years of the period upon which he relies. The question is whether
he has succeeded in doing so.”
See
also:
R
v. Ndaba
1953 (4) SA 13(T)
at 15 A – B
Ethekwini
Municipality v. Brooks and Others SA 2010
(4)
586 (SCA) at para [17] and [23]
[42] The question whether
a relevant road is a public road again arose for consideration in
Botha v. Bukes & Another
1955 (1) SA 581
(O)
. At 586C –
E the Court said the following in its analysis as to whether the
relevant road is a public road or not:
“
Mnr
Smuts se verde betoog is gegrond op die mening van Farwell, R,
uitgespreek in
Attorney
– General v. Antrobus
1905 (2) CH. 188
op p.206
,
naamlik: ‘The cases establish that the public road is prima
facie a road that leads from one place to another public place
(see
per Lord Cranworth in
Cambell
v. Lang 1853 (1) MACQ.451
,
and
Young
v. Cuthbertson, 1854 (1) MACQ.455
)
OR AS Holmes LJ suggest in the Giant’s Causeway case, there
cannot prima facie be a right for the public to go to a place
where
the public have no right’.”
In the
Botha
case
the Court also investigated the consequences of what happens if a
portion of an erstwhile public road is closed. In this regard
the
Court said the following at 586 E – F:
“
Oorspronklik
het die pad van een publieke pad na ‘n ander gelei. Daarna,
volgens Bredell, is ‘n deel van die pad ‘amptelik”
gesluit.”
At
586 – 587 the Court investigated the consequences of a partial
closure of an erstwhile public road. The Court came to the
conclusion
that whether or not the closure of a portion of a public road
necessarily leads to the conclusion that the remaining
portion which
was not deproclamated automatically also fails to be a public road is
a question that has to be determined with reference
to the facts of
the particular matter. The assessment seems to be this: if a relevant
road linked two public roads, and was a public
road, and a portion
thereof was closed, whether or not the remaining portion which was
not officially closed retains the status
of a public road or not
depends whether the general public would still use that relevant
portion which was not deproclamated. One
can think of many examples
in this regard. Notwithstanding the deproclamation of a certain
portion of a road, the public may still
use the road to reach, for
example, a public place for recreational purposes. On the other hand,
on the strength of this judgment,
if the public had no purpose to
utilize the portion not officially closed, then that portion will
also fail to be a public road.
[43]
The abovementioned judgments emphasize the fact that a public road is
that road where members of the public at large have used
this road as
a matter of general right and that it is not merely certain
individuals who have found it convenient to do so for
a more limited
purpose in going from the one point to the other because they
happened to reside on adjoining farms.
In causa
the Brand
family happen to be residing on adjoining farms and therefore use the
road in dispute for their convenience and as an
access from their
farms to the main public road, that is R561. It cannot be said that
other members of the general public have
that latitude, without more,
to use the road through Waterval and for their own purposes or
convenience.
[44] In the result I come
to the conclusion that the relevant road, that is the existing is not
a public road.
Respondents’
right to use the existing road
[45]
Having made a finding that the existing road is a private road, it
remains to be determined on what basis does the Brand family
claim
their right to use the existing road and thus object to the
relocation thereof. It is common cause that there is no registered
servitude in favour of the Brand family on the existing road.
[46]
The Brand family contended that the road had been use for a very long
time and the Applicants accept the possibility that the
Brand family
may have acquired a right in respect of the road. The Applicants
explain that the purpose of the application is not
to deprive the
owners, occupiers or users of Ventersdraai of a road to reach
Ventersdraai, but to establish, in the interest of
all concerned, an
alternative route which would curtail and avoid the many undesirable
consequences and features of the road as
it is currently used. To
this end the Applicants submit that even if the Fifth Respondent had
established a right of use over the
road, such right does not prevent
or oust the jurisdiction and authority of this Court to order a
change in route of the road.
[47]
The legal position was properly set out in a judgment of the Full
Court of the then Transvaal Provincial Division in
Moulder v. Thom
& ‘n Ander
1974 (1) SA 336
(T)
. In this case it was
decided that: where a definite right of way is established it can
only be varied by mutual consent. Where
it was established
simpliciter it is for the owner of the dominant erf to indicate where
the route of the road should run, but
this right must be exercised
civiliter modo
. Once he has exercised his choice he may not
change it. The owner of the servient erf on the other hand has the
right after due
notice to the owner of the dominant erf to vary the
route on condition that the new route is as convenient the old route.
The owner
of a property has also the right to a
via necessitate
,
in other words a way of necessity over the adjacent property where it
is possible for him to gain access to the public road. Such
servitude
is created simpliciter and the route of such a road that may be
created may also be varied by the owner of the servient
erf if he is
able to provide another route which is as convenient as the old one.
[48] In my view the
present case fits the circumstances encapsulated in the
Moulder
case
supra. The Applicants in this matter as owners of the
servient property gave due notice to the Brand family as the owners
of the
dominant property that they desire to change the route of the
existing road. The Applicants recognise the Brand family’s
right of way to access the public road, hence they have tendered to
construct the alternative road at their own costs. Such an
alternative road is even more convenient to the Brand family than the
existing road, distance wise.
[49]
In
Garden
Estate Ltd v. Lewis
1920 AD 144
at 150
the Appellate Division held that a definite servitude having been
constituted, can only be altered by mutual consent. The
Garden
Estate
judgment
has been overruled in
Linvestment
CC v. Hammersley & Another
[2008] ZASCA 1
;
2008 (3) SA 283
(SCA)
.
[50] In
Linvestment
the Supreme Court of Appeal investigated the historical
development of the mitigation of the burden of servitudes. The Court
found
that a right of relocation of a defined servitude was
recognised by most foreign jurisdictions subject to the duty that the
servient owner must prove that the dominant owner’s right of
enjoyment would not thereby be reduced.
Heher JA concluded as
follows in
Linvestment on 292 E – F
:
“
I
am persuaded that the interest of justice do indeed require a change
in our established law on the subject. The rigid enforcement
of a
servitude when the sanctity of the contract or the strict terms of
the grant benefit neither party, on the contrary, operate
prejudicially on one of them, seems to me indefensible…..
Imagine a right of way over a farm portion registered fifty years
ago. Since then new public roads have been created providing new
access to the dominant tenement, the nature of the environment
has
changed, the contacting parties have long gone. Why should a present
owner, on no rational ground, be entitled to rely on his
summun eus
derived from the alleged sanctity of a contract or a grant or
prescriptive acquisition to which he was not privy. Properly
regulated flexibility will not set an unhealthy precedent or
encourage abuse. Nor will it cheapen the value of registered title
or
prejudice third parties.”
[51]
The new legal principle established in
Linvestment
case is to
the effect that the common law is developed to provide that even if
the dominant and servient tenements still remained
in the ownership
of the original contracting parties, the opportunity for relocation
should not be excluded if the circumstances
prevailing at the time of
the original agreement had changed and the dominant owner no longer
possessed any acceptable reason to
subject the servient property to
the strict terms of the grant. In such a case the respective
interests of the parties could fairly
be regulated by reliance on the
concept of convenience and prejudice.
[52]
It is clear that the circumstances in the present case favour the
Applicants. The Applicants accordingly have made out a case
for the
relocation of the existing road. The Brand family will not suffer
prejudice since an alternative road will be constructed
at the costs
of the Third Applicant. Such an alternative road will be as good as
the existing road if not more convenient.
Interdict –
Theft of Third Applicant’s Camera and Malicious Damage to
Property
[53]
The issue herein is whether an interdict ought to be granted against
the Fifth Respondent, interdicting and restraining him
not to steal
or damage in any way the property of the Third Applicant.
[54]
It is common cause that during 2011 the Fifth Respondent damaged
and
/ or stole the Third Applicant’s camera. A civil claim was
instituted against him in the Magistrates Court of Mokopane
under
case number 1285/2011. Judgment was obtained against the Fifth
Respondent and the latter paid the judgment debt plus costs.
[55]
It is alleged that during 2011 the Fifth Respondent maliciously
removed and internationally damaged the Third Applicant’s
gate.
Furthermore that there was an act of sabotage on the petrol and
diesel engines. The Applicants laid a criminal charge at
the South
African Police Service with case number CA25/5/2011.
[56]
The aforesaid conduct of the Fifth Respondent amounts to both a
criminal offence and a delict of which the Third Applicant
has
already obtained an appropriate remedy. It is not alleged that the
Fifth Respondent is in the process of repeating the unlawful
conduct,
that such conduct will be repeated or is about to occur. It cannot be
said that the harm is reasonably apprehended so
as to justify a
remedy in the form of an interdict.
[57] I am not persuaded
that the requirement for an interdict have been satisfied in the
circumstances. In any event the Applicants
have an alternative remedy
which they have already embarked upon. In the result I am not
inclined to grant an order in the form
of an interdict as sought by
the Applicants.
Spoliation
[58]
While the proceedings in this matter were still pending the Brand
family brought a spoliation application against the Applicants
under
case number 4987/2016 in this Court for an order interdicting and
prohibiting the Applicants from interfering with Brand
family’s
use of the existing road. An interim order was accordingly granted in
their favour on 24 October 2016. The parties
had agreed that the
return day of the
Rule Nisi
be heard on the same date as the
present application under case number 3701/2016 (“the main
proceedings”).
[59]
The spoliation application was brought on an
ex parte
basis.
This was done while the Brand family were aware that the Applicants
were parties in the main proceedings and that they were
likely to
oppose the spoliation application due to the pending dispute
regarding the existing road. In my view the Brand family
should not
have approached the Court on
ex parte
basis. On this basis
alone the
Rule Nisi
should be discharged.
[60] The spoliation issue
has now become a moot point in view of the judgment and order I
granted in the main proceedings.
The
effect of this judgment in the main proceedings is that the Brand
family will continue to use the existing road until such time
that
the Third Applicant shall have completed the construction of the
alternative road.
[61]
The
Rule Nisi
granted on the 24 October 2016 under case number
4987/2016 is discharged and there shall be no order as to costs in
respect of the
spoliation proceedings.
[62]
In respect of all other issues in this matter I grant the following
order:
1.
It is
declared that the disputed road marked in red on the map which is
annexed to the founding affidavit and which appears on page
63 of the
paginated papers is not a public road;
2.
It is
hereby declared that the Applicants are entitled to relocate the
existing road which runs over the farms:
2.1.
REMAINDER
OF THE FARM MOROCCO NO. 143, REGISTRATION DIVISION L.R, LIMPOPO
PROVINCE;
2.2.
PORTION
1 OF THE FARM LUSTHOF NO. 150, REGISTRATION DIVISION L.R, LIMPOPO
PROVINCE
2.3.
REMAINDER
OF THE FARM LUSTHOF NO. 150, REGISTRATION DIVISION L.R, LIMPOPO
PROVINCE;
2.4.
REMAINDER
OF THE FARM WATERVAL NO. 151, REGISTRATION DIVISION L.R, LIMPOPO
PROVINCE;
3.
It is
declared that the existing road over the aforementioned farms is to
be replaced by the road depicted with a blue line on the
sketch plan
attached to the founding affidavit as “NOM1” (“the
alternative road”);
4.
The
alternative road referred to on paragraph 3 above shall be not less
than 4 meters wide;
5.
The
alternative road will be constructed by the Third Applicant at its
own costs;
6.
None
of the Respondents will be entitled to use the existing road once the
alternative road has been completed;
7.
It is
declared that the Applicants, through their attorney or otherwise,
will inform in writing all the parties to this application
once the
alternative road is completed and from the 1
st
of the month commencing after the delivering of the letter to the
Respondents a permanent interdict shall and is hereby granted
preventing and restraining the use of the existing road;
8.
The
costs of this application shall be paid by the Third and Fifth
Respondents jointly and severally the one paying the other to
be
absolved, such costs to include the costs previously reserved.
_________________________
E
M MAKGOBA
JUDGE
PRESIDENT OF THE HIGH
COURT
OF SOUTH AFRICA,
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
Heard
on
: 11 MAY
2017
Judgment
delivered on
: 25 MAY 2017
For
the Applicants
: Adv. M P Van der Merwe SC
Instructed
by
: Jarvis Jacobs
Raubenheimer Inc
c/o
DDKK Attorneys
For
the 3
rd
& 5
th
Respondent
: Adv. S W Davies
Instructed
by
: J W Wessels &
Partners Inc
c/o
Kampherbeek & Porgrund Attorneys