About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 122
|
|
Flemix Property Investments (Pty) Ltd v Weyers and Another - Appeal (A98/2023) [2024] ZAFSHC 122 (2 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges:
NO
Circulate
to
Magistrates:
NO
Appeal
Case No: A98/2023
Case
No in court a
quo:
1437/2022
In
the matter between
:
FLEMIX
PROPERTY INVESTMENTS (PTY) LTD
Appellant
And
ELIZABETH
MARIA WEYERS
First
Respondent
REGISTRAR
OF DEEDS, BLOEMFONTEIN
Second
Respondent
CORAM:
DAFFUE, J, REINDERS,
Jet
VAN RHYN,
J
HEARD
ON
:
2 FEBRUARY 2024
DELIVERED
ON:
2 MAY 2024
JUDGMENT
BY:
DAFFUE,
Jet
VAN RHYN,
J
Introduction
[1]
This is an
appeal against the judgment
of a single
judge of this division
delivered
on 15 December
2022 in which it was found that Elizabeth Maria Weyers ('Weyers'),
was entitled to a servitude of right of way by
necessity -
a
via
ex necessitate
-
along a specified route over the property of Flemix Property
Investments (Pty) Ltd ('Flemix')
.
[2]
The court a
quo
dismissed
Flemix' application for leave to appeal, but leave was granted by the
Supreme Court of Appeal to the full bench of this
division on 8 June
2023. No cross-appeal has been noted by Weyers against the court a
quo's
dismissal
of Weyers' claim for a right of way by means of prescription.
The
parties and their immovable properties
[3]
Flemix, the
unsuccesslul first respondent in the court a
quo
and
appellant in this appeal, is the registered owner of the farm
Tienfontein No 689 ("Tienfontein"), district Boshof,
Free
State Province. Flemix purchased
.
Tienfontein
during November 2019 and became the registered owner thereof on 9
December 2020. Tienfontein is landlocked and lies
adjacent to and to
the west of Weyers' farms, Strijd and Edom.
To the west of
Tienfontein and between Tienfontein and the S313 road is Portion 2 of
the farm Koedoe's Rand ("Koedoe's Rand"),
district Boshof,
Free
State
Province.
Chrismar Besigheidstrust is
the
owner of
Koedoe's Rand.
[4]
Weyers, a
pensioner of Bloemfontein, the successful applicant in the court a
quo
and
first respondent in this appeal, is the registered owner of the farm
Strijd No 1008 ("Strijd") and the farm Edom No
1064
("Edom"), both situated in the district of Boshof, Free
State Province
.
These two
farms are adjacent to one another and are also
landlocked.
They do not
have direct access to the nearest public road, namely the S313 road
('the S313') between Boshof to the north and Petrusburg
to the south.
Weyers inherited the farms from her late husband who passed away
during 2017. Her late husband became the registered
owner of the
farms during 1985 and held both farms under Title Deed No T6018/1985.
[5]
The Registrar
of Deeds, Bloemfonte
i
n,
cited as the second respondent, did not file an affidavit or a report
as provided for in s 97(1) of the Deeds Registries Act
47 of 1937 in
the proceedings before the court
a
quo.
The
Registrar does not play any role in the appeal proceedings as well.
In order to prevent confusion, the parties shall herein
after
referred to as Flemix and Weyers.
The
background facts
[6]
Weyers'
application in the court a
quo
concerned
the acquisition of a praedial servitude of right of way along an
existing access route over Koedoe's Rand and Tienfontein
by way of
prescription, alternatively, a right of way by way of necessity along
the same route. Weyers attached
to
her
founding
affidavit
a
sketch,
marked
'X1',
which
depicts
the position
of the various
farms and the access route which the Weyers family have been using
since 1985 for more than three decades
to gain access
from the S313 to Strijd.
'X1'
was
compiled by Mr D J Labuschagne,
a professional
surveyor who endeavoured to visit the various farms, but was denied
access by the representatives of Flemix to physically
inspect the
proposed route. The route is marked
with the
points A, B, C, D, E, F and G on
'
X1'.
[7]
When the late
Mr Weyers became the owner of the farms during 1985, Mr Adam
Serfontein was the owner of Tienfontein. Weyers averred
that there
was never a request or an agreement that the Weyers family could make
use of the access road over Koedoe's Rand and
Tienfontein. During
2006 Mr Serfontein's daughter and her husband, referred to as Mr
Stirk (who in reality is Mr Smook), took over
the farming operations
at Tienfontein and started farming with game. He installed a lock at
the gate which provided entrance to
Tienfontein. Members of the
Weyers family were provided with keys to make use of the access route
to Strijd without any such request
having been made by them.
Thereafter
Tienfontein was leased to a certain Mr Pretorius who installed an
electric gate motor at the entrance to Tienfontein.
The members of
the Weyers family were provided with the cellular phone number to
open the electric gate and continued to use the
access route to
Strijd without any request or a concession by Mr Pretorius.
Therefore, Weyers contended that Mr Pretorius knew
that the route was
used by them as an access route.
[8]
When Flemix
became
the
new
owner
of Tienfontein
during
2020
things
changed
and access to
Tienfontein was denied by removing the telephone system through which
the Weyers family obtained access through the
gate. A representative
of Flemix
informed
the Weyers
family that they would only be allowed to use the access route under
the supervision of the new owners.
After further
discussions, Weyers' son and daughter were provided with remote
control devices to enable them to make use of the
access route to
Strijd.
[9]
The situation,
however, became even more fragile when an incident occurred during
December 2020 when farm workers from Strijd allegedly
became
aggressive and insulting when the gate was not opened for them to
gain access to Tienfontein.
Thereafter a
further alleged incident involving the farmworkers of the Weyers
family occurred during September 2021 after a funeral
of a family
member of one of the farm labourers. A representative of Flemix
allowed access to the farm workers through a pedestrian
gate by way
of an intercom system,
but
discovered
that
the
gate
was
not
functioning
due
to
the
fact
that
Weyers'
employees had removed the gate from its rail and in the process
damaging it. Allegations pertaining to littering in the
vicinity of
the gate by the farm labourers worsened the relationship between the
parties. Since then the Weyers family could only
gain access to or
egress from Strijd to the S313 through the intervention of
representatives of Flemix. The farm workers had to
be accompanied by
either Weyers' son or daughter.
[10]
The
application in the court a
quo
was
opposed on the basis that since, at least 2009, a gate and lock which
provided entrance to Tienfontein, was installed by Mr
Smoak. Only
after requesting a copy of the key to the gate
,
was the late
Mr Weyers p
'
rovided
with a way to gain entrance to Tienfontein and the access route. The
farm workers also did not have free use of the access
route across
Tienfontein. The arrangement was that if they required to make use of
the access road across Tienfontein, they would
have to inform the
farm manager who would then accompany them and open the gate in order
to traverse Tienfontein either way.
[11]
In order to
assist the reader in understanding the parties' contentions as to the
different access routes rel
i
ed
upon by them, we provide the following sketches, the first being
'
X1'
r
elied
upon by Weyers and the second being 'FPI 2
.
1'
rel
i
ed
upon by Flemi
x
.
The distance of the access r.oute in
'
X1'
from St
r
ijd
to the S313 is 2 337 meters a
n
d
the distance of the route from the northwestern boundary of Strijd
across Zwartlaagte to the S313 is 2 058 meters, a difference
of 237
meters.
It
must be recorded that the distance of 2 103 meters shown on
'X
1'
refers to the distance over Tienfontein only and excludes the
distance over Koedoe's Rand.
[12]
In reply,
Weyers appended no less than five affidavits of deponents to
inter
alia
deny
the allegations set out by Mr Smook. Typical of the response of an
applicant in motion procedure facing serious disputes of
fact raised
by the respondent, the replying affidavit and annexures thereto are
found from pages 143 to 349 of the appeal record,
ie
a total of
207 pages. That should be compared with the answering affidavit and
annexures totalling a mere 63 pages.
The
judgment of the court
a
quo
[13]
The court a
quo
found
that a dispute of fact existed on the
papers
regarding the
relief sought for the acquisition of a servitude of right of way by
means of prescription. The court a
quo
remarked
that this is one of the pitfalls of proceedings
by way of
application.
[14]
The court a
quo
found
that there was a dispute of fact on the papers which goes to the
heart of the requirement of
nee
precario,
namely
whether Mr Smock had in fact granted permission on request of Mr
Weyers to make use of the access route for the period from
2009 to
2015
.
Because
motion proceedings are not designed to determine probabilities, the
question of
nee
precario
had
to be adjudicated on the version set up by the respondent, Flemix, as
conveyed by Mr Smock, as a result of which the application
for a
servitude based on prescription did not succeed.
[15]
The
alternative relief,
ie
the
registration of a servitude of right of way of necessity was however
granted. The court
a
quo
considered
the matter on equity and fairness, stating that
'an
equitable
balance' had to be struck
'between
the
interests of the dominant and servient owner.' It referred to
English
v CJM Harmse Investments
CC
and
Another
[1]
,
but
the
dictum
quoted
did not support the court a
quo's
reasoning.
In
casu,
it
is not a situation that 'the existing route is simply longer or more
inconvenient than a right of way over the neighbour's property
would
be.' The court a
quo
also
relied on
Van
Rensburg v Coetzee
[2]
for
its ultimate conclusion,
ie
that
the maxim
ter
naaste lage en minster schade
does
not lay down an inflexible rule as circumstances
could
dictate otherwise. It held that although the alternative route
proposed by Flemix is 279 meters shorter than the access route
over
Tienfontein, that measurement did not take into consideration that
Edom lies at the other side of Strijd
,
and
also, the existing access route enters Strijd at a point much nearer
to the boundary between Edom and Strijd. 'In addition,
[the court a
quo stated] some works will be necessary to make that route [the
alternative route] fully accessible for vehicles,
trucks and farm
implements.' The court a
quo
made
the point that the problems with Weyers' employees could not stand in
the way of granting the relief sought. It was satisfied
with the
compensation offered by Weyers. In summary, and as set out in the
judgment refusing leave to appeal, the court a
quo
held
first, that the existing access route had been used by the Weyers
family for many years and second, the proposed route was
not that
much shorter and some work will have to be undertaken and costs
incurred to make it accessible for the Weyers family.
The
grounds of appeal
[16]
The grounds of
appeal relied upon by Flemix are, inter alia, that the court a
quo
erred in
its approach to the matter, by adjudicating upon the application from
the perspective
of the
defences raised by Flemix and not by addressing the issue whether
Weyers had in fact discharged the onus of proving that
the access
route over Tienfontein
is factually
fer naaste
l
age en
minster schade.
Furthermore,
the court a
quo
erred in
holding that the difference of 279 meters with which Flemix' proposed
route is shorter than the other route should not
play a significant
role in the adjudication of the matter. The court a
quo
incorrectly
considered that the proposed shorter route does not take into account
that the access route enters Strijd at a point
much nearer than the
dividing line between Strijd and Edom whilst the two farms were
always farmed as a collective farming enterprise
.
It also
incorrectly found that the issues pertaining to Weyers' employees
should not stand in the way of
granting a
servitude on the basis of necessity and that such issues must be
resolved in the spirit of cooperation and understanding.
The court a
quo
furthermore
found that the access route over Tienfontein is the only serviceable
road to the landlocked farms and that it has been
used for decades,
while some work will have to be done to the alternative
route. Weyers
did not deal at all with work to be done on the alternative
route
identified by Flemix in the answering affidavit.
Legal
principles relating to
a
via ex
necessitate also known as
a
way of
necessity
[17]
A
via
ex necessitate
is
awarded on the basis of what is necessary. In
Van
Schalkwyk v Du Plessis and Another
[3]
De
Villiers
CJ considered the circumstances which would justify the granting of
such a praedial servitude and held as follows:
"As
to
the
road
being one
of
necessity
to
the plaintiff,
the
Court
has never laid
down
any definite rule
as
to
what circumstances
would
constitute
such
a
necessity,
nor
is
it advisable
that such a rule
should now be laid down. It is not necessary for the purpose of the
present case to go so far as to hold that there
can be no road of
necessity over a neighbour's land, unless the only possible approach
to a public road is over such land. There
may perhaps be cases in
which
the
alternative route would be as difficult and inconvenient as to be
practically impossible,
and in such cases the Court might be justified in affording relief
subject to compensation, and the other restrictions mentioned
by Voet
(8.3.4). The present case is not, however, of such a nature. It is an
inconvenience I must say, a great inconvenience for
the plaintiff not
to be able to use the road in question in order to bring his cattle
from his mountain farm on to the nearest
public road or to his other
farms. But the inconvenience to the plaintiff is
not
so great as to justify the Court in putting the defendants out to the
still greater inconvenience
of
having a cattletrack through their narrow and cultivated strip of
land. The plaintiff can reach the public road by a track over
the
farms
'Lous
Legplek' and
'Pampoenfontein', and although that track is more circuitous and less
convenient than the one claimed,
it
is certainly not impracticable as a means of access to and egress
from his
farm".
(emphasis
added)
Steyn
J
accepted
the correctness of these
dicta
in
Trautman
NO v Poole
[4]
.
[18]
Years
later the court considered the legal principles again in
Van
Rensburg v Coetzee
[5]
.
A
way of necessity
(via
ex necessitate)
is
classified as a
'legal
servitude'
that exists over the servient land which offers the nearest exit to
the public road.
Such
a way originates either from an agreement between the parties, or
from an order of court.
A
court may grant a right of way
over
the property of a non-consenting owner (subject to payment of
appropriate compensation), but only when it is shown that the
right
of way is necessary to provide access to the nearest public road. A
way of necessity takes the form of the shortest route
to the nearest
public road along a route that causes the least damage to the
servient tenement according to the principle
fer
naaste lage en minster schade.
[19]
A party claiming a right of way of necessity must allege and
prove
[6]
:
'(a)
the need to a
road of necessity and the reason why it must traverse the defendant's
property
;
(b)
the
width
of
the
road
claimed
and
the
reason
for
that
claim;
(c)
a suitable
route;
The
claimant must tender compensation in a fixed sum.'
[20]
In
Aventura
Ltd v Jackson NO and Others
[7]
(Aventura)
Nugent
JA, writing for a unanimous court, held the following:
'What
is meant by
'necessity' is that the right of way must be the
only
reasonably
sufficient
means
of gaining access to the landlocked property
and
not merely a convenient means of doing so.'
(emphasis added)
[21]
In
Sanders
v Edwards
[8]
a
way of necessity was granted because the maintenance of an existing
road was found to be too expensive for continuing farming
operations.
Evaluation
of the parties' submissions
[22]
The first
question to be decided is whether the claim for a way of necessity
can be entertained as a matter of law. The farms, Strijd
and Edom,
farmed as a unit, are landlocked. It is common cause that Weyers, her
family, employees and other visitors have to traverse
other farms to
reach the S313 to enable them as farmers to carry on farming
operations on the said farms. Weyers is entitled to
access to the
S313, but the question is over which property.
[23]
The
second question is whether necessity was established on the evidence
presented by Weyers,
ie
whether
she has no
reasonably
sufficient access to the S313, save for traversing Flemix' property.
As pointed out in
Aventura,
[9]
she
cannot rely on convenience
.
The
alternative route must be so difficult and inconvenient
as
to be almost impassable.
She
opted to present her case by way of application, rather than by way
of the usual action procedure. Due to the troubled relationship
between the Weyers family and the representatives of Flemix, the
situation at the time when the founding affidavit was deposed
to was
that Weyers' son or daughter had to telephonically request access
from the representatives of Flemix who would then travel
to the gate
that barred them from entering Tienfontein, open the gate and travel
with them to the next gate at the border of Tienfontein
and Strijd
which is also kept locked by Flemix
.
The
farm
workers
are
not
allowed
to
travel
on
the
access
route
without
being
accompanied by either Weyers' son or daughter, following the same
procedure as mentioned above. Clearly, the Weyers family
is not
prevented from using the access route across Tienfontein, but needs
to comply with certain prescripts.
[24]
Adv
PJJ Zietsman SC submitted, relying on the
Plascon-Evans
principle
[10]
,
that
the application should have been adjudicated on the version put up by
the first respondent (the present appellant) together
with those
facts in the founding affidavit which the first respondent did not
deny (save for exceptions to the rule which is not
applicable
in
casu).
The
factual dispute between the parties could not be resolved on the
papers. He submitted that the issue on appeal turns on the
question
whether Weyers had discharged the
onus
to
establish a servitude of right of way of necessity
ter
naaste
/age
en minster schade
over
Flemix' property and the incorrect application of the law by the
court a
quo.
According
to him the court a
quo
should
have dismissed the application on the basis that Weyers' case was
that the access route over Tienfontein is the nearest route
to the
S313 which is factually incorrect.
[25]
Mr Zietsman
submitted that Flemix had proved that the route from the S313 across
the farm Zwartlaagte, which is the farm to the
north of Tienfontein
and Strijd, is factually the shortest route to Strijd
.
This is
evident from the sketches relied upon by the parties to be found in
paragraph 11
supra.
Zwartlaagte,
the neighbouring farm to the north of Tienfontein and Strijd, is also
owned by Chrismar Besigheidstrust, the owner
of Koedoe's Rand
.
Flemix'
sketch, marked 'FPI 2.1', indicates that the distance from points A,
B, E to Fis
the shortest
distance from the S313 to the boundary between Strijd and
Zwartlaagte.
Furthermore,
points A, B to E is an existing farm road on Zwartlaagte.
A new road
will have to be created along the border fence at points E to F, but
Mr Zietsman submitted that the owner of Zwartlaagte
has a statutory
obligation to create a firebreak along the border fence from point E
to F which firebreak may also serve as an
access route.
[26]
Weyers
alleged several times
in
her
founding affidavit that the access route over Tienfontein was the
only access to a public road and that it was impossible to
farm
effectively without having access to that route 'which must be
traversed in order to reach the nearest public road.'
[11]
She
then offered
to
pay reasonable
compensation
as
calculated
by
her. She did not advance any reasons why the court a
quo
should
have exercised its discretion in her favour, save to mention that
they have to travel a certain distance 'through the veld'
if the
route across Zwartlaagte is used.
[27]
Although it is
sometimes permissible to supplement
•
allegations contained
in the founding affidavit in reply, Mr Zietsman submitted that Weyers
failed to comply with the general rule
that applicants must stand or
fall by their founding affidavits. Flemix was called upon to meet the
case presented in Weyers' founding
affidavit which it successfully
did. The servitude required over Flemix' property is over a longer
distance than the alternative
route pointed out by Flemix.
[28]
Adv J Els,
counsel for Weyers, submitted that it is common cause that both
Strijd and Edom are landlocked. Weyers is therefore entitled
to a
right of way of necessity. The only issue is therefore which route
such a right of way should follow.
On the basis
that Flemix indicated in the answering affidavit that it will
elaborate upon the burden of the use of the access road
and then only
mentioned three of four incidents involving the farm workers and/or
their families who caused disturbances or damage,
no other reasons
were advanced to show that its farming activities were hampered by
the use of the access road.
[29]
Mr Els
submitted that a proper case was indeed made out in the founding
affidavit for obtaining a servitude of right of way of necessity
in
that all the necessary allegations were made. When Flemix responded
in the answering affidavit that there was a shorter alternative
route
available to Weyers in order to access Strijd, Weyers was entitled to
reply to the averments contained in the answering affidavit
and to
introduce further corroborating facts in her replying affidavit.
[30]
As mentioned,
the issue in dispute between Flemix and Weyers is the actual route of
the way of necessity to Weyers' farms, Strijd
and Edom. Flemix
instructed a professional land surveyor, Mr Johan Nortje. His sketch
plan, attached as annexure
'FPI
2
.
1'
to the answering affidavit and reproduced in paragraph 11
supra,
provides
for two alternative routes. Point F is the alternative entrance gate
to the farm Strijd. The distance of the alternative
route from point
A to F over Koedoe's Rand and Zwartlaagte, F being on the
northwestern
corner
of Strijd and
on the boundary with
Zwartlaagte,
is 2 058
meters. We repeat that the distance of the access route proposed by
Weyers is 2 337 meters from the S313 to point G, the
current entrance
gate to Strijd. Therefore, Flemix contended that the shortest route
to traverse the adjoining land which lies
in between the landlocked
land, being Strijd, and the nearest public road, the S313, is
the
alternative route depicted in green and blue between points A, B, C
and Fon
'FPI
2.1'. Furthermore,
the route
between points A, B and E of the alternative route is an existing
route on Koedoe's Rand and Zwartlaagte.
[31]
In reply
Weyers averred that the access route
'is
not only the
shortest route but also the route which causes the lightest burden to
the servient land'. It was furthermore contended
that Weyers' son
only installed a gate as a temporary measure at the border of
Zwartlaagte pending the outcome of the application.
It was contended
that 'there is no alternative route' and
that
Weyers' son
drove through the veld on Zwartlaagte with permission of Mr Nigrini,
the representative of the Chrismar Besigheidstrust
(the owner of
Koedoe's Rand and Zwartlaagte) in case of an emergency
when access
could not be obtained from Flemix
.
Mr Nigirini
does not consent to a servitude being registered over any portion of
Zwartlaagte.
[32]
In any event,
so Mr Els submitted based on the replying affidavit, the alternative
route proposed by Flemix fails to take in consideration
that Edom
is
also
landlocked and that the distance on the route to the buildings on
Strijd and to Edom from point J on annexure X3 attached to
the
replying affidavit
-
point F on
'FPI 2.1' -
must be
calculated as well. If this extra distance is added, according to Mr
Labuschagne in his affidavit in support of the replying
affidavit,
the proposed alternative route is 2 910 meters long and thus about
half a kilometer longer than the access route over
Tienfontein.
[33]
In our view
there is a real dispute of fact on the papers as to which route would
be the most appropriate and/or the shortest, bearing
in mind Mr Els'
submissions. The distance not taken into account by Flemix which
would enable the Weyers family to also gain access
to Edom was not
addressed in the founding affidavit. The possibility that a shorter
route across Zwartlaagte is in existence and
that only a short
section of the alternative route does not consist of an already
existing farm road is placed in dispute by Weyers.
As said, we are of
the view that a real dispute of fact exists. It is not possible to
make any finding on the papers in this regard.
In fact, the court a
quo
accepted,
as clearly Indicated in the judgment when leave
to
appeal was refused, that the route proposed by Flemix was 279 meters
shorter than the access route over Tienfontein.
[34]
When
applicants elect to proceed by way of motion procedure while there
are foreseeable
disputes
of facts, they do so at their own peril. A bare denial of facts
alleged by an applicant would not be sufficient to create
a material
dispute of fact, but Flemix has done more than raising a bare denial.
It accepted the challenge presented by Weyers
in her founding
affidavit and showed that the alternative route over Zwartlaagte is
shorter than the access route over Tienfontein.
As mentioned, the
court a
quo
accepted
this. In
Wulffers
v Boxer Dale Holdings (Ply) Ltd and Others
[12]
the
Supreme Court of Appeal recently had to deal with
a
dispute
pertaining
to
a
way
of
necessity
and
its
position
on
the
servient
tenement.
Based on the facts of that case the Supreme Court of Appeal held that
there was a real dispute of fact on the papers -
motion
proceedings having been instituted in the court a
quo
-
as
to which route would be the most appropriate and least onerous for
the servient owner, the width of the road and the needs of
the
landlocked property. Therefore, it upheld the appeal, finding that
the court a
quo
erred
in determining the factual disputes on affidavit and held that the
application should be dismissed with costs.
[35]
Despite
the obvious need for a servitude of way by necessity by the Weyers
family and their farm workers, Weyers as the applicant
bore the
onus
to
establish that the particular praedial servitude, a way of necessity
along the access route over Tienfontein, is the shortest
route to the
nearest public road that causes the least damage to the servient
tenement according to the principle
fer
naaste /age en minster schade.
Insofar
as Flemix pointed out that an alternative and shorter route is
available, it was incumbent on her to show that that alternative
route would be difficult, inconvenient and thus practically
impossible to traverse.
[13]
This she failed to do
.
We
are of the view that too many issues that cannot be resolved on
papers existed and that the court a
quo
ought
to have dismissed the application
with
costs.
Order
[36]
Consequently,
the following order is issued:
1.
The appeal is
upheld with costs.
2.
The court a
quo's
order
is set aside and substituted with the following order: The
application is dismissed with costs.
JP
DAFFUE J
I
VAN RHYN J
I
concur
C
REINDERS J
On
behalf of the Appellant:
Adv
PJJ Zietsman
Instructed
by:
SC
Muller Gonsior Attorneys
BLOEMFONTEIN
On
behalf of the First Respondent:
Adv
J Els
Instructed
by
:
Mcintyre
Van Der Post Attorneys
BLOEMFONTEIN
[1]
2007
(3) SA415 (N) at 4198
.
[2]
1979
(4) SA 655
(A)
at 675C.
[3]
1900
17
SC
454
at
p
464;
LAWSA,
vol
24
and
the
discussion of
Van
der
Merwe
and De
Waal,
paras 560
-
564
.
[4]
1951
(3)
SA
200
(C)
at
p
207.
[5]
1979
(4)
SA
655
(A) at pp 670 F - 678 C for a general discussion
.
[6]
Harms,
Amler's
Precedents of Pleadings,
9th
ed,
at p 320
.
[7]
2007
(5) SA 497
(SCA) at para 8
.
[8]
2003
(5)
SA
8 (C).
[9]
Footnote
7
supra.
[10]
Plascon-Evans
Paints
v Van Riebeeck Paints
1984
(3)
SA
623 (SCA)
at
pp
634 -
635.
[11]
Record,
p
29,
paras
19.3
-
19.5
and also in other paragrahps, but contrary thereto she mentioned in
para 17
.3
that the route over
Zwartlaagte
had
been
used
'
in
case
of
emergency.'
[12]
(1224/2021)
(2022] ZASCA 172 (1 December 2022).
[13]
Refer
to footnote 3
supra,
the
dictum
of
De Villiers, CJ in
Van
Schalkwyk v Du Plessis and Another
and
the discussion in
LA
WSA.