Sanders N.O. and Another v Edwards N.O. and Others (A 36/2002) [2002] ZAWCHC 60; [2003] 1 All SA 108 (C) (7 November 2002)

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[2002] ZAWCHC 60
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Sanders N.O. and Another v Edwards N.O. and Others (A 36/2002) [2002] ZAWCHC 60; [2003] 1 All SA 108 (C); 2003 (5) SA 8 (C) (7 November 2002)

[REPORTABLE]
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Case No.:
A
36/2002
In
the matter between:
JOHANNES WILHELMUS SANDERS
N.O.
First
Appellant
BETTY
CUYLER SANDERS N.O.
Second
Appellant
(In their
capacities as Trustees of the Chatellier Trust)
and
WILLIAM HENRY PHILLIP
EDWARDS N.O.
First
Respondent
JOHAN
COLIN EDWARDS N.O.
Second
Respondent
ALDYTH
LOUISA EDWARDS N.O.
Third
Respondent
(In their
capacities as Trustees for the Ridgewood Trust)
________________________________________________________________________
JUDGMENT
DELIVERED ON THE
7
TH
DAY OF
NOVEMBER
2002
________________________________________________________________________
COMRIE
J. :
This is an appeal from a
judgment of the magistrate at Knysna in which he found that the
plaintiffs
a quo
(respondents on appeal) were entitled to a servitude of right of way,
a
via ex
necessitate
, in
favour of their farmland over the adjacent farmland owned by the
defendants
a quo
(now the appellants). For convenience I shall refer to the parties
as at first instance.
The
background to the case is as follows. The plaintiff’s farm
consists of three registered portions, the main portion being no.
293. The farm as a whole, and portion 293 in particular, is divided
by a steep ravine. That part of the farm to the north of the
ravine
is the cultivated and inhabited part. It enjoys direct access (over
plaintiff’s portion 293/8) to the national road known
as the N2.
Relatively little cultivation seems to have taken place to the south
of the ravine, but the plaintiffs are keen to grow
proteas there on a
commercial basis. This enterprise, which meets with the approval of
Mr. Fischer, the horticultural expert who
testified for the
plaintiffs, would entail the use of large vehicles and other
agricultural equipment. The southern part of the
farm does not
border on a public road. In the past the plaintiffs have, for their
limited needs, gained access from the south to
the Keurbooms road
across the land of Mr. Abrecht, and with his permission. The nature
of that permission was debated on appeal.
The Keurbooms road links
up with the N2.
In addition to Mr. Abrecht’s
property (294/4), there are two other parallel properties between
portion 293 and the Keurbooms road,
namely the properties of Mr. de
Greef (294/5) and the defendants (294/6). It was over the last
mentioned property that the magistrate
granted the right of way in
favour of portion 293.
Prima
facie
the order,
if it stands, does not operate in favour of respondent’s portion
388/3, part of which also lies to the south of the
ravine. Among the
issues debated on appeal was whether the right of way, if otherwise
warranted, should not rather have been granted
over Mr. Abrecht’s
land.
Compensation
for the right of way, if granted over the defendants’ property, was
agreed by the parties at the trial in the sum
of R7 500.
The evidence for the
plaintiffs was further that unless they build an expensive road
through the ravine, they cannot move vehicles
from the southern part
of their farm to the northern part. Absent such a road, the southern
part is effectively cut off for farming
purposes from the northern
part and more especially from the northern part’s egress to the N2.
Hence the action for a way of necessity
southwards (over the
defendants’ property) to the Keurbooms road. According to Mr.
David Visser, the civil engineer who testified
for the plaintiffs,
the construction of such a road
for
all weather use
would at the time of the trial have cost in excess of R600 000
(inclusive of VAT). It was however put to him in cross-examination
that a
clement
weather road
through the ravine could be built at a fraction of that cost. I
shall discuss this evidence later.
It
will be apparent from this brief summary that the plaintiffs’ farm,
and in particular portion 293, already enjoys access to
a public road
(i.e. northwards to the N2). What the plaintiffs claimed,
therefore, was a second such access (i.e. southwards to
the
Keurbooms road). The first question to be decided is whether such a
claim for a way of necessity can be entertained as a matter
of law.
The leading case is
Van
Rensburg v. Coetzee
1979(4) SA 655 (A). It was said by
Joubert
JA
at 671 A:
“
Dit is egter
nie nodig om vir die doeleindes van die onderhawige geval uitsluitsel
oor die fundamentele benadering te gee nie. Dit
is genoeg om te
aanvaar dat ‘n aanspraak op ‘n noodweg ontstaan as ‘n grondstuk
geografies ingesluit is en geen uitweg het
nie, of, as ‘n uitweg
wel beskikbaar is, dit egter ontoereikend is en die posisie daarop
neerkom dat die eienaar
“
has
no reasonably sufficient access to the public road for himself and
his servants to enable him, if he is a farmer, to carry on
his
farming operations”
(Lentz v Mullin
1921 EDC 268
te 270; vgl ook die uitspraak van die Hof
a
quo
te 134C
).”
See too
Van
Schalkwyk v. Du Plessis and Others
17
SC 454
at 463; and Van der Merwe:
Sakereg
(2 ed) at 486.
It is thus evident that the
proposed dominant tenement does not have to be literally landlocked
from a public road, but that it may
constructively constitute
“blokland”. However, the facts of the present appeal do not fit
neatly into this mould, for the reason
that the plaintiffs’ land
has existing access to the N2. In
Trautman
NO v Poole
1951(3)
SA 200 (C)
Steyn J
said at 208 A – B:
“
The
northern portion of appellant’s farm in fact abuts on the public
road above the point M, so that it cannot be said that she
has no
access from her farm, regarded as a whole, to the public road and the
authorities cited above and others merely sanction the
grant of a
via
necessitatis
as a
means of proceeding from a farm or other property to the public road;
no authority has been cited to me, nor have I succeeded
in finding
any in the time at my disposal, to the effect that a
via
necessitatis
can
be granted from an owner’s homestead if not conveniently situated
or that it should be granted so as to enable an owner to
proceed to
any part of his property; I shall, however, and without deciding the
point, assume that a
via
necessitatis
can
also be granted under such circumstances.”
The lack of authority
mentioned by the learned Judge was subsequently furnished, it may be
thought, by
Natal
Parks, Game and Fish Preservation Board v. Maritz
1958(4) SA 545 (N). A portion of a game reserve was effectively cut
off from the remainder by a steep and almost perpendicular gully.

The appellant board wished to establish a ranger’s station on the
portion cut off for the purpose of properly carrying out its
statutory duties, especially in order to combat poaching. It
accordingly sought a way of necessity over the respondent’s
property
so that in effect the two portions of the game reserve would
be linked. The appeal succeeded. The case is distinguishable on
three
grounds: firstly, because it was decided under (a Natal)
statute; secondly, because what was sought was a right of detour,
rather
than access to a public road; and thirdly, because the game
reserve (so linked) would still enjoy a single access to a public
road.
Nonetheless, I respectfully find the approach by
Holmes
J
(with whom
James
J
concurred)
instructive. The learned Judge said at 550:
“
Mr.
Will’s
final point was that the Board could have no jurisdiction to grant
the application since the proposed detour was not a way of necessity
at common law. (It was common cause that in terms of secs. 17 and 19
of Act 35 of 1901 the proposed detour would have to fall within
the
concept of a way of necessity at common law, if the Board were to
have any jurisdiction in the matter.) Mr.
Will’s
contention was that at common law a way of necessity is only
available if
the
whole
of an
applicant’s property is landlocked and lacks any access to a public
road. In other words he contended that if one extremity
of a
person’s land has access to a road, there can never in any
circumstances be a way of necessity in relation to the other
extremity.
I agree with Mr.
Feetham
that this proposition is too narrowly stated. The test at common law
is necessity. In the present case the Southern end of this
60,000
acre reserve has access to a public road, but the 1,500 acres
comprising the Tongue at the Northern extremity is effectively
cut
off from the remainder by a steep gully. Thus the Tongue is isolated
and inaccessible. The only way to link it with the remainder,
or to
give it needed access to the public road in the South, is by
circumventing the gully, which necessarily involves a detour on
to
adjoining owner’s land. I cannot imagine that the common law would
be so lacking in common sense as to deny a way of necessity
in such a
case. I can find no support for Mr.
Will’s
restrictive proposition in the Roman-Dutch authorities to which we
were referred by counsel. I do not propose to discuss them in
detail
because they are conveniently summarised in Hall and Kellaway on
Servitudes
,
2
nd
ed. (by Mr. JUSTICE HALL) at p. 66; and Lee’s
Introduction
to Roman-Dutch Law
,
5
th
ed., p. 165, defines a way of necessity as
“
a
way to be used only for the harvest, for carrying a corpse to burial,
or other necessary purpose, or a way of giving access to a
public
road.”
Hence, in the
present case, one can say that the detour is required for the
necessary purpose of linking the Tongue with the remainder
of the
Reserve. Or one can say that it is required so that the otherwise
inaccessible portion of the Reserve may have necessary
access to the
public road which serves the remainder. In either event, in my
opinion, it is a way of necessity.”
From this reasoning it is
but a small step to hold that when a farm is cut in two, for example
by the Berg River, it may be necessary
that each half should have its
own right of way to a public road or roads. To borrow the language
of
Holmes J
,
“I cannot imagine that our law would be so lacking in common sense
as to deny a way of necessity” on appropriate facts. Further,
on
the need for this branch of the law to continue developing, see
Naudé v. Ecoman
Investments en Andere
1994(2) SA 95(T). I conclude therefore that the existing access from
the northern part of the plaintiff’s farm to the N2 is not
in
principle inimical to the grant of a way of necessity from the
southern part of the farm to another public road.
The second issue for
decision is whether necessity was established on the evidence. Here,
in the light of the cross-examination
and the argument on appeal, I
return to the
locus
classicus, Van Rensburg v. Coetzee
supra, for guidance. At 671 E
Joubert
JA
said:
“
Dit
volg uit die aanhaling hierbo uit
Lentz
v Mullin
tap dat
die omvang van die noodweg sodanig moet wees dat, in die geval van ‘n
boer, dit redelikerwys voldoende is om hom in staat
te stel om sy
boerdery behoorlik voort te sit. In hedendaagse omstandighede soud
dit dus nodig wees om voorsiening te maak vir die
in- en uitgang van,
bv, landbouimplemente en –masjiene, vragmotors en gewone
motorvoertuie.”
And
at 672C the learned Judge of Appeal added:
“
Die vraag kan
egter gestel word of die omstandighede van die boerderybedryf vandag
nie dusdanig kan wees dat die feitlik daaglikse
in- en uitgang van
motorvoertuie noodsaaklik is nie.”
I
have already mentioned that the construction of an all-weather road
through the ravine would cost in excess of R600 000, which
the
engineer regards as economically prohibitive in relation to the
proposed protea venture. I agree with him. What was put to
him in
cross-examination (and to a lesser extent to Mr. Edwards) was the
expert summary of Mr. de Gouveia which was filed for the
defendants.
Mr. de Gouveia did not, however, actually testify. According to the
summary he holds a T2 in civil engineering, and
has long experience
in the civil engineering industry, including in respect of
“earthworks, dams, roads, farm roads”. The summary
continued:
“
4. On
the 5
th
June 1999 he inspected the road through the indigenous forest on the
farm in question. He was informed that the road was built
approximately
15 years ago and he noted that there has been little or
no maintenance done on it for a number of years, which is evident by
the
number of trees having encroached into the road. He found,
however, that the base of the road is still in very good condition
and
to make the road suitable for the use of tractors again, a
bulldozer would be required to grade the road, but to make it
suitable
for light delivery vehicles, improvements at the stream
crossing are required. He suggests that a concrete slab of
approximately
3m wide by 10m long should be cast across the stream
and approximately 15m long concrete strips on the north side of the
slab.
He estimates
that the total cost of the work would be R39 500,00 plus
VAT.
6. In the
witness’ opinion the road constructed in this manner would be
perfectly suitable for use by two-wheel drive light delivery
vehicles, tractors and any other vehicles normally used for farming
operations.”
Mr.
Edwards explained in chief that the existing road/path was so steep
that in one direction, from south to north, it was impassable
to
vehicles. He recounted an episode when a tractor tilted back on to
its rear wheels, leaving the nose pointing up in the air.
He
explained further that protea farming on a commercial scale would
“need bigger forms of transport to cope with it. Proteas
are based
on a volumetric capacity. So there is quite a lot of volume as far
as proteas are concerned”. And:
“
They are not
very heavy but they take up a lot of bulk? - - - They are bulk.”
In cross-examination counsel
for the defendants, Mr.
Fourie
,
broached the De Gouveia summary. The passage reads as follows:
“And there, I
do not want to traverse matters which are of an expert nature, but
just maybe in all fairness to you what Mr De Gouveia
on behalf of the
defendants will testify that on the northern side you could lay
concrete strips which would then enable you to traverse
the northern
slope so to speak with a 4 X 4 vehicle and with a tractor? - - - As I
mentioned earlier even if you did put concrete
strips the gradient is
far too great for a vehicle to go up. The tractor as I mentioned as
well is that we did have a situation
where we were going up and the
tractor’s front wheels lifted off the ground and it slewed round.
It is a huge drop, precipice
drop on the one side of the road and I
have never attempted it since then. It was, my staff it took us, it
was a terrifying experience
I might just add and ally my staff which
I still have will testify to that. And we then had, so even if you
put concrete strips
on the gradient with a slight bit of moisture on
it, vehicles could slew off that road quite easily.
Would
that only be tractors or other vehicles too? - - -
Well
I assume a five ton . . . (intervenes)
Would
you be satisfied with a concrete strip with two by four bakkies for
example? - - - As I say it is impractical in the sense
that it is
just so steep. That is the problem with the steepness. It is not so
much anything else. It is far too steep and you
know as we know in
forestry if it gets algae or moss on it it has hardly got any more
tracks than a normal road would have.
Would it be correct to say
that since the plaintiffs have bought that farm it appears that no
real maintenance or the road through
the
kloof
was not really maintained as such, it was not used nor maintained? -
- - Not at all no, it was not used or maintained.
At all? - - -
It was used, I attempted to use it and as I say earlier it is as you
can see we cannot use it no. It has been used
as a track for
cattle.”
And
later:
“
. . . the
evidence Mr. De Gouveia intends to give is that a concrete slab
should in fact be lain across or put across the crossing
so as to
reduce the steepness of the ascent of the northern side. Would you
like to comment on that? - - - I think what he said
was the concrete
slab would basically as I understand it would be in case there was
flood water or something like that coming through
one could go over
but you know, it goes up a 120 metres. So how that would change the
gradient of 120 metres I do not think so.
By means of
filling up that could be done or not? - - - Basically, the only way,
if you look at the map you can see that it is steep
cliffs all the
way around, very steep, it shows on the map is the gradients that
there is no ways a concrete slab at the bottom is
going to change the
gradient of the road.”
In
his evidence Mr. Fischer, the horticulturist, pointed to the
unsuitability of conveying protea plants by tractor. He elaborated
:
“
It is a
seasonal planning besides now the land preparation and everything
where you have to bring the seedlings on site before winter
during
the moist time where there is a regular moisture and it is the best
planting out for the season say from April onwards.”
Notwithstanding
this evidence, Mr. Fischer was not cross-examined on the de Gouveia
summary.
Turning
to the evidence of Mr. Visser, the engineer, he explained in chief
that his “brief was to look at the economic viability
of up grading
the existing track . . . to suit the needs of the farming operations
in the southern section”. He stated:
“
One does not
want a track that you cannot access 365 days of the year due to
various rainfall, the rainfall in the area. So with
that in mind . .
. . “
He
stated further that “the highest rainfall recorded is 111mm in
August and the lowest monthly rainfall is about 61 mm in December”.
He referred to the catchment area of 1,2 hectares, to the indigenous
canopy and the seepage, and to other difficulties and dangers
for
which his design for “an all weather road surface” would have to
cater. The witness was referred to the tractor episode
and asked
whether his design would resolve the problem. He said that a
tractor, pulling a heavy implement, might still experience
problems
and might have to have “special waits (sic) on the front wheels or
something like that because you know that gradient
is very steep”.
Mr.
Visser expressed serious reservations about the de Gouveia report,
including:
“
So it is just
a tamperer (sic) solution and as soon as it rains one is going to get
the same erosion and one will not be able to access
the, utilise the
road as soon as you have rainfall. You know one can look at this, in
a tree canopy there as well, so one day’s
rain might be three of
four days, we call it consequential delay because the moisture is
still in the ground and one cannot get through.
So it is not just
the day that it rains on. It might be two or three days thereafter
before it has time to dry out and one can
access the road again.”
And:
“
The
concrete slab at the foot of the stream, that is, they call it like I
presume he is referring to like a little drift. It is not
going to
improve the whole gradient of that. He is using the
in
situ
ground
levels. So it is not going to improve the gradient situation. So
you are going to be sitting with exactly the same scenario.
The
concrete is going to provide a little bit of better traction over
that 15 metres just to get up that very steep section but
it is not
going to be a major improvement through the river bed.”
Still
in chief Mr. Visser expressed the view that Mr. de Gouveia’s
estimate of R39 500 plus Vat sounded like a reasonable cost
for what
was proposed, but that the proposal was “still not solving the
problem”. Thus the de Gouveia road would not take a
truck unless
the road was widened.
In
cross-examination Mr. Visser confirmed that his own design was for an
all weather, 365 days a year road, which he considered to
be not
economically viable. The cross-examination proceeded:
“
The
impression I gained if I look at Mr De Gouveia’s report and I look
at your report is that he opts for what I would call a rudimentary
low class so to speak, farm road? - - - Yes.
As
opposed to your upper class so to speak farm road. Would you go
along with that general statement? - - - Ja I think what we have
discussed is that from what I have heard from Mr De Gouveia’s
report is that it is not going to be a solution. So he is not
providing
the solution to their problem. Their problem is to get
from north to south and from south to north at any time. So he is
offering
a tamperer (sic) solution which can be taken away during
adverse weather conditions and when there is too much water around.
Right. - - - So
it is not a permanent solution and his solution is also obviously got
a lot of maintenance involved with it as well.
Because every time it
rains you have got to go and fix up the dongas. So it is a tamperer
(sic) solution and it is not a fulltime
access.”
As I have shown by these
extracts, substantial criticisms of the de Gouveia proposal were
voiced by two of the plaintiff’s witnesses,
while the proposal was
not canvassed with the horticulturist. Something must turn, it seems
to me, on the degree of access which
a protea farmer reasonably
requires to his lands and on the times when he needs access. Compare
the remarks of
Joubert
JA
at 762 C quoted
earlier. There was some evidence that seedlings should be planted in
the rainy season, which
prima
facie
means that
access would be materially restricted because of the rain. Faced
with this difficulty, Mr.
Fourie
went so far as to submit that the plaintiffs could claim a right of
way in wet weather. And it is not just the rain, there were
also
unanswered questions of steepness and road width. In the absence of
evidence for the defence from Mr. de Gouveia and/or other
appropriate
witnesses, I think the conclusion is warranted that the de Gouveia
proposal would not adequately meet the needs of the
situation.
Mr.
Fourie
submitted in the alternative that necessity, as distinct from
convenience, was not established because the plaintiffs enjoy an
existing
right of way over the property of Mr. Abrecht. It is
settled law that a land owner cannot claim a way of necessity if he
has (sufficient)
alternative access to a public road, albeit over a
route which is longer or less convenient. This principle applies
where the owner
enjoys a consensual right of way over his neighbour’s
land. As it was put by
Graham
JP
in
Lentz
v Mullin
, cited
earlier, at 274:
“
But although
these roads have been long in use, it is not suggested that any
objection has at any time been raised to such use. Until
the
plaintiff has been debarred from the use of the existing approach to
the Cwengewe road, he is premature in claiming a road of
necessity
over the defendant’s property.
I
can find no authority in support of the proposition that a person may
claim a
via
necessitatis
over
his neighbour’s property on the grounds that such property alone
separate his from a public road, when he already has access
to
another public road by a route passing over one or more intervening
properties whose owners have raised no objections to its use.
It
would be imposing an unreasonable and onerous servitude on many
properties if such a doctrine was accepted.”
See too
Gray
v. Gray and Estcourt Road Board
1907(28) NLR 151 at 155;
Carter
v. Driemeyer and another
1913(34) NLR 1;
Van
Rensburg v. Coetzee
1977(3) SA 130(T) at 134.
In
reading the evidence of Mr. Edwards on this point one should
distinguish between: (i) his testimony as to the pro’s and con’s
of a way of necessity over the defendants’ property or over the
Abrecht property; and (ii) his testimony as to the basis upon
which
passage over the Abrecht property had been allowed in the past. I
confine myself to the latter. Mr. Edwards stated in chief:
“
What is the
basis of the arrangement to yourself and Mr Abrecht in the past . . .
(indistinct). - - - It is basically just down to
a day to day basis.
We call him up and ask him if we may use the road to, for any purpose
that we may find necessary.
And
he grants you permission from time to time? - - - He does.
You
have no lease agreement with him? - - - Nothing no.
No
permanent arrangement no . . . (indistinct) on a long term basis in
order to hire the access route from . . . (indistinct). -
- - No
no.”
In
another context the witness stated that “Mr. Abrecht could stop us
using that road at any short notice”, and:
“
While it is
still available through Mr Abrecht, that is not really a permanent
access. So that is, it would make a huge difference
to know that we
did have a permanent access and therefore could increase and utilise
that land for [farming operations].”
In
cross-examination Mr. Edwards stated that in about 1990, after the
defendants’ refused access, the plaintiffs were desperate
and they
went to see Mr. Abrecht, who gave permission to bulldoze a road over
his land. It was put to Edwards that for:
“
about 10/11
years now, you were entitled to use this road . . . over Abrecht’s
property? Correct. We were entitled to use it on
a day to day
basis. We never had any undertaking by him that he would give it to
us more than that.”
Asked
why the plaintiffs had not planted proteas sooner, Edwards replied:
“
We discussed
it on numerous occasions with my family and we felt that it would be
foolhardy to actually cultivate a crop and get it
to a position where
one would need to harvest and to spray it and to tend to it and then
to actually get vehicles in and out and
if for any instance Mr
Abrecht had to sell his property or the arrangement between us which
I mentioned earlier was on a day to day
basis was closed, we would
sit with a problem where we would not after spending a lot of money,
would not be able to harvest that
crop. So that is the reason for
that.”
And:
“
You were
allowed access via Mr Abrecht’s property for the past ten years on
your own evidence. - - - But he never gave it to us
for ten years.
He started allowing us sort of access on a day to day basis as an
emergency to help us with our farming activity
on that side.
But
he has never refused you access across his land as I understand it? -
- - No he has never refused us access.
So
why . . . (intervenes) - - - We have to phone him on each occasion
that we want to use it and things like that, it is a gentleman’s
agreement.”
Mr. Abrecht did not testify.
On a conspectus of this evidence it appears to me that the
plaintiffs did not enjoy a right of way,
even
precarium
,
over the Abrecht property. There was a hope, and a reasonable
expectation, that they would be allowed to make use of the road from
time to time, according to their
ad
hoc
needs, but on
each occasion (from day to day) they had to obtain Mr. Abrecht’s
permission. It follows in my view that Mr. Abrecht,
if so minded,
could have refused permission on any occasion without any preceding
warning or notice. In my assessment the “gentleman’s
agreement”
was of a kind which conferred no enforceable right of way upon the
plaintiffs. The use now under consideration (for
protea farming)
differs
toto caelo
from that which has been historically exercised. One cannot infer
that Mr. Abrecht would raise no objections to the proposed new
usage.
In my view, therefore, the historical use over the Abrecht land did
not constitute an obstacle to the grant of a way of necessity
over
the defendants’ land.
The remaining two points
argued by Mr.
Fourie
on appeal can be disposed of briefly. Counsel submitted that the
plaintiffs were not
bona
fide
intending
protea farmers, and that they were seeking the
via
necessitatis
for
some other undisclosed purpose. On the evidence the submission is
without any merit whatsoever. Counsel submitted further that
if a
way of necessity was established, then the Abrecht property should be
the servient tenement rather than the defendants’ property.
(Mr.
de Greef’s property was not suggested). The relative merits of the
routes were canvassed in evidence. The existing road
over the
Abrecht land is longer and for roughly half its distance bisects that
property. The route over the defendants’ property
would be
shorter, straighter and along the boundary. It was in this context
that Mr. Edwards described the latter as the most “convenient”.

Other aspects were raised in evidence. Furthermore, at the
commencement of the trial, the magistrate was taken on an informal
inspection
in loco
.
I can see no reason to interfere with the magistrate’s finding
that the proposed road over the defendants’ land would not only
be
shorter, but also would “inflict the least damage . . . or
impediment to the defendants’ land”
(ter
naaste lage en minste schade)
.
The
appeal is dismissed with costs.
R.G.
COMRIE
JUDGE
I
agree.
J.A.
VAN DER WESTHUIZEN
ACTING
JUDGE
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Case
No.:
A 36/2002
In
the matter between:
JOHANNES WILHELMUS SANDERS
N.O.
First
Appellant
BETTY
CUYLER SANDERS N.O.
Second
Appellant
and
WILLIAM
HENRY EDWARDS N.O.
First Respondent
JOHAN
COLIN EDWARDS N.O.
Second Respondent
ALDYTH
LOUISA EDWARDS N.O.
Third
Respondent
(in
their capacities as Trustees for the Ridgewood Trust)
________________________________________________________________________
Counsel
for Appellants :
Adv.
Burton Fourie
Attorneys :
Millers
Incorporated
Ref:
Alida Hoffmann
Tel
: (021) 462-3815
Counsel
for Respondents :
Adv.
P.E. Jooste
Attorneys :
Jan
S De Villiers
Ref:
Mr. J.G. Theron
Tel
: (021) 405-5100
Date
of hearing :
Friday,
30 August 2002
Date
of judgment :
Thursday,
7 November 2002