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2016
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[2016] ZANCHC 67
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Lotter and Another v Uys (2627/15) [2016] ZANCHC 67 (11 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NO: 2627/15
In
the matter between:
LÖTTER
C.J. & 1
OTHER
Applicant
And
UYS
C
Respondent
JUDGMENT
CORAM:
LEVER AJ
1.
In
this matter the applicants were granted an urgent interdict in the
form of a
rule
nisi
to restore a right of way to their farm. The said right of way passed
over the respondent’s land. The applicants claimed
that the
respondent unlawfully deprived them of the use of this right of way
by building a motorised gate which blocked the relevant
road. The
said gate could only be opened by way of a remote control and
respondent refused to provide the applicants with a remote
control to
open such gate. The applicants obtained an interim order in their
favour on the 21 December 2015 and on the extended
return day the
matter was argued as an opposed motion.
2.
The
applicants claimed the right of way over the respondent’s land
on the basis that the relevant road is a proclaimed ‘divisional
road’. Applicants claim that they had been using the said road
for 15 years and that their predecessors in title had also
used such
road. On this basis, the applicants claimed that they were in free
and undisturbed possession of the right to use the
relevant road
prior to the respondent’s spoliation.
3.
Applicants
claimed that the act of building the new gate and more specifically
refusing to provide applicants with a remote control
to open such
gate constituted a spoliation.
4.
The
respondent admits the contention that the applicants have used the
relevant road for some 15 years. However, respondent attacks
applicants’ right to invoke the
mundament
van spolie
on several grounds. Firstly, respondent contends that applicants have
not shown that the proclaimed divisional road, in terms of
which they
claim the right of way, traverses the respondent’s land.
Secondly, respondent asserts that the applicants have
not made out a
case for acquiring the said right of way by means of acquisitive
prescription. Thirdly, respondent also asserts
that the applicants
have not made out a case that they had acquired the right of way by
way of necessity. Fourthly, there is a
general assertion that
applicants’ have not made out a case for the relief claimed
based on a right of way. Finally, respondent
contends that there is
an alternative route on a proclaimed divisional road which is, a
shorter route to the applicants’
home in Kimberley and that
this should be the main route to the applicants’ farm.
5.
The
applicants annex to their papers a proclamation by the Divisional
Council of Kimberley, which had been approved by the relevant
Administrator. This proclamation was published in the Provincial
Gazette on the 28 November 1958 as P.N. 759/1958. The respondent
does
not challenge this proclamation on any basis and in the
circumstances, must be taken to have admitted it.
6.
The
said proclamation proclaims several minor roads in the jurisdiction
of the Divisional Council of Kimberley. The road in issue
is the 9
th
one on the said list. The format of the said proclamation is that on
the extreme left of the page the minor roads are numbered
in a list
format under the heading “No.” (Nommer). The next heading
is “Aanvangspunt” (point of origin).
The next heading is
“Roete” (Route). Which is followed by the heading
“Eindpunt” (point of termination).
Finally, on the
extreme right of the page the heading “Mylafstand”
(distance in the old measure of miles).
7.
The
point of origin for the relevant road is described as “Afdelingspad
no. 57 op Bothaspoort.” (Divisional road number
57 at
Bothaspoort). The route is described as “Suid oor Panfontein,
Skietpanskop, Rooikraalfontein, Groenvlei en Rietpan-Oos”.
The
point of termination of the said proclaimed divisional road is
described as “Grens van Oranje-Vrystaat” (now simply
known as the Free State). Finally, the length of the said divisional
road is said to be 9 miles.
8.
Mr
Van Niekerk SC who appeared on behalf of the respondent argued that
the applicants had not established that the road upon which
they
traversed the respondent’s land was the proclaimed divisional
road that appeared on the said proclamation as item 9.
To illustrate
this argument as well as the argument relating to the alternative
route Mr Van Niekerk referred the court to a map
that respondent had
annexed to his papers, which had been marked annexure “CU1”.
9.
Mr
Van Niekerk pointed out that the proclamation stated that the
relevant road started at Bothaspoort, it then went South over
Panfontein and that, with reference to the map (annexure “CU1”),
it was not possible to find Panfontein South of Bothaspoort.
Mr Van
Niekerk then referred to the proclamation and submitted that as the
respondent’s farm was not named in the relevant
proclamation,
the applicants had not established that such proclaimed road did
traverse respondent’s farm. Accordingly, Mr
Van Niekerk argued
the applicants cannot rely on the said proclaimed divisional road as
the basis for their right of way over the
respondent’s land.
10.
Mr
Van Niekerk then submitted that if the applicants’ right of way
cannot be founded on the proclaimed divisional road then
applicants’
right of way was nothing more than a concession (“ʼn
vergunning”). This submission was linked
to the argument that
if possession was not direct possession of a corporeal object it must
be possession of the right to use the
property (“gebruiksregte”)
that is incidental to possession and control of the property.
Otherwise, it was submitted
that the applicants would not qualify for
the protection of a spoliation order. Mr Van Niekerk based this
argument on the authority
of the Supreme Court of Appeal (SCA)
decision in the matter of
First
Rand Bank t/a Rand Merchant & Another v Scholtz N.O. &
Others
[1]
.
11.
Mr
Van Niekerk further submitted that on the authority of the judgment
of the SCA in the matter of
ATM
Solutions (Pty) Ltd v Okru Handelaars CC and Another
[2]
,
ordinary contractual rights as opposed a right to use the property or
a right which is incidental to possession and control of
the
property, do not qualify for the protection of a spoliation order.
12.
Mr
Van Niekerk then submitted that the concession (“vergunning”)
which the respondent and his predecessors in title
afforded the
applicants was nothing more than a contract and as such did not
qualify for the protection afforded by a spoliation
order.
13.
Mr
Van Niekerk conceded that if I found the applicants’ right of
way to be based on the proclamation of the divisional road
then the
argument relating to the applicability of a spoliation order to a
contract would fall away.
14.
Mr
Jankowitz, who appeared on behalf of the applicants, argued that not
all farms which the relevant road traversed were named in
the
proclamation. There is some merit in this argument.
15.
It
appears from the proclamation, the relevant extract of which is
already quoted in full above, read with the map supplied by the
respondent, being annexure “CU1” to respondent’s
answering affidavit, that the Kimberley Divisional Council used
a
mixture of farm, village, hamlet or settlement names, when describing
the route that the relevant road followed.
16.
The
point of origin of the relevant proclaimed road is from the village
or hamlet of Bothaspoort. The said road runs south over
Panfontein.
As Previously stated Panfontein cannot be located South of
Bothaspoort. I am unable to say if the Panfontein mentioned
in the
proclamation referred to a village, hamlet, settlement or farm. It is
possible that Panfontein referred to a settlement,
hamlet or village
that ceased to exist before the map was drawn.
17.
It
is also possible that Panfontein referred to a farm that might have
had its name changed because of subdivisions or consolidation
or
merely a change of name before the map was drawn. Clearly, on the
evidence before me I cannot reach a conclusion on this question.
However, on the facts of this particular case, I do not believe that
it is necessary for me to resolve this issue.
18.
Respondent
on his own version states that he lives on the farm “Leeuwpoort”
but that the farm is also known as Dagbreek.
The farm “Leeuw
Poort” appears on the map supplied by the respondent but there
is no reference to the farm also being
known as Dagbreek on the said
map. This, and the Panfontein issue, illustrates that we are dealing
with a proclamation that is
many decades old while trying to
reconcile it with a map whose date of publication is unknown.
19.
The
reference to Skietpanskop in the proclamation is interesting. In the
title deed to applicants’ farm, annexure “CJL1”
to
the founding affidavit, their farm is described as “Die plaas
SCHIETPANSKOP 23”. This is the same description that
appears on
the map supplied by respondent. However, the map also shows a
settlement or hamlet on the said farm whose name is spelt
“Skietpanskop”. The road in question runs directly to
that settlement or hamlet. As set out above, the proclamation
refers
to “Skietpanskop” an indication that the proclamation
referred to the settlement or hamlet rather than the farm.
20.
In
relation to Rooikraalfontein the proclamation probably refers to the
farm because, that reflects the most direct route to “Groenvlei”
and “Rietpan East”, as described on the map (Rietpan-Oos
as described in the proclamation). Both Groenvlei and Rietpan
East
appear to be settlements or hamlets on the map.
21.
It
is also important to bear in mind that the map indicates that there
is only one road originating in the hamlet of Bothaspoort
that heads
South from Bothaspoort. This is the road that travels over the
respondent’s farm as well as the applicants’
farm. Save
for Panfontein, this first road traverses all of the farms, hamlets,
settlements or villages that indicate the route
in the relevant
proclamation.
22.
The
other road that the map indicates does not originate at Bothaspoort,
but passes through Bothaspoort and this road is oriented
in a west to
east direction and maintains this orientation for some distance after
Bothaspoort before it turns in a South-Easterly
direction.
Furthermore, this road that passes through Bothaspoort from West to
East does not traverse any of the farms, villages,
hamlets or
settlements indicated as waypoints or the route of the relevant road
described in the proclamation.
23.
Taking
the above factors into account, the only reasonable conclusion that
this court can reach is that the applicants have established
that the
right of way which they claim, is a right of way over the road
described in the relevant proclamation. By no stretch of
the
imagination can it be said that the respondent has established a real
dispute of fact on this question. The mere fact that
respondent’s
farm is not mentioned in the proclamation does not mean that the
relevant proclaimed road does not traverse
respondent’s farm.
The other reference points in the relevant part of the proclamation
show that such road must traverse
the respondent’s farm. The
map supplied by the respondent substantiates and supports this
conclusion.
24.
That
being the case, it is not necessary for me to consider the other
arguments and defences raised by and on behalf of the respondent.
The
respondent has admitted that applicants have used this right of way
for some 15 years before he deprived them of its use by
building the
remote-controlled gate referred to and refusing to supply applicants
with a remote-control making it impossible for
applicants to continue
to have the benefit of such right of way.
25.
Clearly,
on the facts before the court, the applicants were in free and
undisturbed possession of this right of way prior to the
spoliation
referred to above. In these circumstances, the applicants are
entitled to confirmation of the
rule
nisi
issued
on the 21 December 2015
.
26.
The
last remaining issue is the issue of costs. Applicants have sought a
special order that costs be awarded on a scale as between
an attorney
and his own client.
27.
Mr
Van Niekerk submitted on the authority of the Appellate Division
decision in the matter of
NEL
v WATERBERG LANDBOUWERS KO-OPERATIEVE VEREENIGING
[3]
that
the facts of this case did not warrant a costs order of the type
sought by the applicants. In my view Mr Van Niekerk is correct.
However, the applicants are the successful party and in the
circumstances, they are entitled to their costs. Accordingly, they
will be awarded costs on the ordinary party-and-party scale.
In
the circumstances, it is ordered that:
1)
The
rule
nisi
issued out of this court on the 21 December 2015 is confirmed.
2)
The
respondent is ordered to pay the applicants party-and-party costs.
_______________
Lawrence
Lever
Acting
Judge
Northern
Cape High Court
On
behalf of Applicant:
Adv D Jankowitz
Haarhoffs In
On behalf of
Respondents:
Adv J Van Niekerk SC
Duncan & Rothman
Date
of hearing:
05 August 2016
Date
of Judgment:
11 November 2016
[1]
[2006] JOL 18273 (SCA).
[2]
[2009] 2 All SA 1 (SCA).
[3]
1946 AD 597.