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[2019] ZASCA 55
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JJPC Brand Administrators and Another v Lombard and Others (1223/2017) [2019] ZASCA 55 (1 April 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1223/2017
In
the matter between:
JJPC BRAND
ADMINISTRATORS FIRST
APPELLANT
BASIE
BRAND SECOND
APPELLANT
and
P
LOMBARD FIRST
RESPONDENT
L J
ENGELBRECHT SECOND
RESPONDENT
EATING HABITS (PTY)
LTD THIRD
RESPONDENT
Neutral
citation:
JJPC
Brand Administrators & another v Lombard & others
(1223/2017)
[2019] ZASCA 55
(1 April 2019)
Coram:
Navsa AP and
Tshiqi, Wallis and Van der Merwe JJA and Eksteen AJA
Heard:
4 March 2019
Delivered:
1 April 2019
Summary:
Road – portion of public road
closed – whether remaining portion a public road depends on
circumstances.
Servitude
– relocation of defined servitude of right of way at instance
of servient owner – not permissible if proposed
new route would
be less convenient, less practical or more expensive to dominant
owner.
ORDER
On
appeal from:
Limpopo
Division of the High Court, Polokwane (Makgoba JP sitting as court of
first instance):
1 The appellants’
application to adduce further evidence on appeal is dismissed with
costs.
2 The appeal is upheld
with costs to be paid by the respondents, jointly and severally.
3 The order of the court
a quo is set aside and replaced with the following:
‘
The
application is dismissed with costs to be paid by the respondents,
jointly and severally.’
JUDGMENT
Van
der Merwe JA (
Navsa AP
and Tshiqi and Wallis JJA and Eksteen AJA
concurring)
[1] This appeal concerns
a road that links the farm Ventersdraai 153, Registration Division
L.R., Limpopo Province (Ventersdraai)
to the R561 provincial road
between the towns of Baltimore and Marken. The issues for
determination are whether the Limpopo Division
of the High Court,
Polokwane (Makgoba JP) correctly made orders declaring: (a) that this
road (the existing road) is not a public
road; and (b) that the
respondents are entitled to relocate its route.
Background
[2]
The existing road runs via points C and B to point A on the map shown
above. Point A indicates the entrance to Ventersdraai.
The distance
between point A and the R561 is approximately 11 kilometres. From the
R561 the existing road traverses the remainder
of the farm Morocco
143 (Morocco), portion 1 of the farm Lusthof 150 (Lusthof 1), the
remaining extent of the farm Lusthof 150
(Lusthof) and the remaining
extent of the farm Waterval 151 (Waterval), in that order. Upon
exiting the R561 it runs in a south-westerly
direction on Morocco
along its southern boundary. At the south-western corner of Morocco
it turns 90 degrees to the north-west
and continues on Morocco
alongside its boundary with Lusthof 1. It then turns towards the
south-west and follows that general direction,
first over Lusthof 1,
then over Lusthof and finally over Waterval up to the boundary of
Ventersdraai.
[3]
The late Mr JJPC Brand (the testator) acquired Ventersdraai during
1968. During 1976 he also acquired the remainder of the farm
Kwaggadraai 137 (Kwaggadraai). Kwaggadraai adjoins Ventersdraai at
the latter’s north-eastern corner. Ventersdraai and Kwaggadraai
presently vest in the first appellant, the administrators of a trust
created by the joint will of the testator and his surviving
spouse,
Mrs Susanna Dorethea Brand (Mrs Brand). There was some confusion at
the commencement of the proceedings in the court below
as to who the
administrators of the testamentary trust were, but it is clear that
Mrs Brand was one of them. In terms of a power
of attorney filed on
behalf of the first appellant shortly before the hearing of the
appeal, the administrators are indicated as
Mrs Brand and two of her
sons, Mr Jacobus Johannes (Basie) Brand and Mr Johannes Hendrik
(Tommy) Brand. Mr Basie Brand is the second
appellant.
[4]
The registered owner of Morocco is Go Lokile Farm (Pty) Ltd. It did
not oppose the respondents’ application in the court
a quo nor
participated in the appeal. The first respondent, Mr Philip Lombard,
was previously the owner of Lusthof 1. He transferred
ownership of
Lusthof 1 to a Mr Nicolaas Stephanus Botes on 12 September 2013, but
for some unexplained reason remained a party
to the proceedings in
the court a quo and the appeal. It is not disputed that Mr Botes
aligns himself with the respondents. The
second respondent is Mrs
Louisa Jacoba Engelbrecht. She is the owner of Lusthof. The third
respondent, Eating Habits (Pty) Ltd,
is the owner of Waterval. It
also owns portion 1 of the farm Waterval 151 (Waterval 1). Waterval 1
adjoins the southern boundary
of Waterval and both adjoin the eastern
boundary of Ventersdraai.
[5]
According to the evidence it is well known in the area surrounding
the existing road that it originated as a wagon road (‘wapad’)
long before the1950’s. The second respondent had resided on
Lusthof since 1955 and confirmed that the existing road had been
in
use since then. Mrs Brand first arrived in the area during 1962 and
also confirmed that the existing road had been used since
that time.
The existing road allows convenient access to the homesteads on
Ventersdraai and on the other farms along its route.
This probably
determined its route in the first place.
[6]
As I have said, the testator acquired Ventersdraai during 1968. At
that time the existing road formed part of a public road
that
continued over Ventersdraai from its boundary with Waterval (point A
on the map), in a south-westerly direction and then in
the same
direction over the adjoining farm Morning Star 156 (Morning Star).
This public road then proceeded southward over the
farm Eulalie 136
until it joined a public road between Jemima and Marken. This public
road thus linked the Baltimore/Marken and
Jemima/Marken public roads.
[7]
On 14 March 1973, however, the then Administrator of the Transvaal
published a notice in the
Provincial
Gazette
headed
‘CLOSING OF PUBLIC ROAD ON THE FARMS MORNINGSTAR 165 LR (sic)
AND VENTERSDRAAI 153 L.R.: DISTRICT OF ELLISRAS.’
(The notice).
It is clear from the notice and the accompanying sketch plan that
only that portion of the public road that traversed
Morning Star and
Ventersdraai, was closed. The notice stated that the Administrator
acted under the provisions of s 31(1) of the
Transvaal Road Ordinance
22 of 1957. This meant that the notice constituted approval by the
Administrator of an application that
had been made under s 28(1) of
the Ordinance by ‘a person who desires that any public road
other than a provincial road be
closed’. The notice therefore
did not, in its terms, affect the remaining portions of the public
road, southward of Morning
Star and to the east of Ventersdraai.
[8]
During 1978 the testator and Mrs Brand moved their residence to
Kwaggadraai. They and their descendants (the Brand family) have
resided on Kwaggadraai ever since. When these proceedings were
instituted during 2012, Mrs Brand had continuously resided on
Kwaggadraai
for more than 33 years. At that time her aforesaid two
sons and their families also resided on Kwaggadraai. The Brand family
have
used the existing road via Ventersdraai continuously since at
least 1978. This included use by heavy trucks transporting cattle,
game and lucerne. The Brand family also maintained the existing road
during this period.
[9]
The only modification to the route of the existing road took place
during 1992. At that time the existing road traversed the
middle of
Morocco. Because a pan on Morocco rendered a portion of the route
difficult to use when it rained, all interested parties
agreed to
move the route to run along the boundaries of Morocco as detailed
above.
[10]
The third respondent acquired Waterval 1 only during 2009. It then
became interested in also acquiring Waterval, which it intended
to
use together with its existing farm as a unit, for purposes of a game
farm. Its representatives found it objectionable that
the existing
road would run more or less through the middle of the envisaged
combined game farm. Before it acquired Waterval, the
representatives
of the third respondent met with Mrs Brand and the second appellant,
to discuss the possible relocation of the
existing road over
Waterval. At that time they proposed that after entering Waterval
from Lusthof, the existing road would turn
towards the north-west and
would from there, run along the eastern, northern and western
boundaries of Waterval, in that order,
up to the present entrance to
Ventersdraai.
[11]
The appellants did not agree to this proposal. The second appellant,
inter alia
,
said that the existing road had been used for more than 30 years and
produced a letter that, according to him, supported the stance
that
the use of the existing road could not be impeded. It turned out that
this was a letter from the regional head of the western
region of the
Department of Public Works of the Northern Province, dated 12
September 2000 (the letter) and addressed to Mrs Brand.
The letter
referred to an application by a previous owner of Waterval to close
the existing road over Waterval and informed Mrs
Brand that the
relevant roads board had decided that the existing road ‘may
not be closed and shall retain its status as
a public road’.
When the third respondent acquired Waterval during July 2010, it knew
that the appellants were opposed to
the relocation of the existing
road and on what grounds.
[12]
As I have said, the respondents launched their application during
2012. For present purposes it suffices to say that the respondents
claimed orders declaring that the existing road was not a public road
and that they were entitled to relocate it according to their
proposal. In their application, however, the respondents proposed a
road entirely different from what they had proposed earlier.
They
proposed a route along points D and E to point F on the map. The
proposed new road would continue from the south-western corner
of
Morocco in the same general direction along the southern boundaries
of Lusthof 1, Lusthof and Waterval, until it reached Ventersdraai.
It
is immediately apparent that the proposed new road would provide
entrance to Ventersdraai only at its south-eastern corner (point
F).
It is common cause that this is approximately three kilometers from
where the existing road enters Ventersdraai (point A).
[13]
The appellants maintained that it had not been shown that the
existing road was no longer a public road. They contended that,
in
any event, a praedial servitude of right of way along the existing
road had by acquisitive prescription been created in favour
of the
owners of Ventersdraai. As the proposed new road would cause material
prejudice to the owners of the dominant tenement,
so they argued, the
relocation of the servitude was precluded by law.
[14]
The court a quo held that the existing road was not a public road and
in para 1 of its order issued a declaratory order to
that effect (the
first declaratory order). Despite accepting that the appellants had
established a right of way along the existing
road, in para 2 of its
order, it declared that the respondents are entitled to relocate it
as latterly proposed by them (the second
declaratory order) and made
further orders aimed at giving effect thereto (paras 3-7 of the
order). Paragraph 8 of the order directed
the appellants, jointly and
severally, to pay the costs of the application. The court a quo
refused leave to appeal but this court,
subsequently, granted leave
to the appellants to appeal to it.
Public
Road
[15]
The definition of ‘public road’ in s 2 of the Transvaal
Road Ordinance 5 of 1912, provided for essentially two
categories of
public roads. They were:
‘
(a)
any road proclaimed as such under this Ordinance or which has been
established or become a public road under this or any other
Ordinance;
(b)
any road or path however created . . . which at
the commencement of this Ordinance 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 fifteen years.’
Section
7(1)
(a)
of this Ordinance provided that the Administrator of the Transvaal
may ‘from time to time as occasion requires’ by
proclamation declare any road to be a public road.
[16]
The whole of Ordinance 5 of 1912 was repealed by the Roads Ordinance
9 of 1933. Its definition of ‘public road’
included paras
(a)
and
(b)
above,
in identical terms. The provisions of s 7(1)
(a)
of Ordinance 9 of 1933 were also virtually identical to those of its
predecessor. It provided, however, that a proclamation under
s
7(1)
(a)
had to be published in the ‘
Official
Gazette of the Province of Transvaal
’.
[17]
The Roads Ordinance 22 of 1957, in turn, repealed the whole of
Ordinance 9 of 1933. It retained the two categories of public
roads,
in the following terms:
‘
(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 . . .
which has been in the undisturbed use of the public during a
continuous period of not less than
fifteen years’.
Section
5(1)
(a)
of Ordinance 22 of 1957 provided that the
Administrator may by notice in the Provincial Gazette declare any
road to be a public
road after investigation and report ‘by the
board concerned’. This referred to the road board for the
particular area
that had been constituted under Ordinance 5 of 1912
that remained in place under Ordinances 9 of 1933 and 22 of 1957.
[18]
Ordinance 22 of 1957 was repealed by the Limpopo Roads Agency Limited
and Provincial Roads Act 7 of 1998. That Act established
the Limpopo
Roads Agency and made it responsible for provincial roads of the
Limpopo Province. Section 71(1) of this Act, in essence,
provides
that any action or decision taken under or
recognised
by Ordinance 22 of 1957, remained of
full force and effect and s 55(6) thereof provides specifically for
the continued existence
of the aforesaid road boards.
[19]
It follows that the public road that the existing road formed part
of, referred to in the notice, could either have been established
by
proclamation or by public use. A proclaimed public road will
generally only cease to be a public road if it is closed by
proclamation.
The same must in my view apply when only a portion of a
proclaimed public road is de-proclaimed. The remainder of the
proclaimed
public road would in these circumstances retain that
status.
[20]
The position may be different when a portion of a public road that
had been established by public use, is closed, albeit by
proclamation. The remaining portion of such a road would not
necessarily cease to be a public road. See
Botha
v Bukes & another
1955
(1) SA 581
(O) at 586G-H. Whether it retains that status, would
depend on the circumstances of each case. One question would be
whether the
remaining portion continues to be in the undisturbed use
of the public and the answer to this question depends on whether the
remaining
portion leads from one public place to another and/or is
used by the public at large as a matter of general right. See
Rex
v Erasmus
1947 (3)
SA 568
(T) at 570-571 and
Roos
v Mossop
1952 (1)
SA 8
(T) at 11D-F and 12F-13B. (In both these cases the court had to
determine whether the road in question was a public road under
Ordinance 9 of 1933).
[21]
The aim of the respondents’ application was the relocation of
the existing road. In order to achieve that aim, they had
to show
that the existing road was not a public road. Thus, the onus rested
on the respondents to prove on a balance of probabilities,
in the
first place, that the existing road was not a proclaimed public road
or a part thereof. In the replying affidavits, the
respondents
produced evidence that some searches of official records did not
provide any indication that the existing road had
been part of a
proclaimed public road. There is, however, such a lack of
particularity in respect of the nature, sources and extent
of these
searches that the court a quo should not have been satisfied that a
proper case had been made for the grant of the first
declaratory
order.
[22]
In the result, the first declaratory order must be set aside. As it
follows that the existing road may have to be regarded
as a public
road, the second declaratory order was incompetent. But assuming that
the respondents established that the existing
road was not a public
road, it would, for the reasons that follow, in any event not have
been entitled to the second declaratory
order.
Relocation
of right of way
[23]
By the end of 2011, the owners of Ventersdraai had used the existing
road openly and as though they were entitled to do so
for an
uninterrupted period of more than 30 years, since at least 1978. The
appellants would, on acceptance of the case of the
respondents that
the existing road was not a public road, therefore have established
that a praedial servitude of right of way
along the existing road had
been acquired in terms of
s 6
of the
Prescription Act 68 of 1969
in
favour of Ventersdraai as the dominant tenement. This was never
disputed by the respondents and correctly accepted by the court
a
quo. When a servitude is acquired by prescription, an original real
right is created which is enforceable against the ‘whole
world’
without the need for registration. See
Cillie
v Geldenhuys
[2008]
ZASCA 54
;
2009 (2) SA 325
(SCA) para 13 and AJ van der Walt
The
Law of Servitudes
1
ed (2016) at 322.
[24]
I therefore turn to the issue of relocation of such right of way. The
starting point is the fundamental principle of the law
of servitudes,
namely that the servient owner may not do anything that impedes the
use of the servitude. A servitude of right of
way may be constituted
either along a specific route (a definite or defined servitude) or
generally (
simpliciter
),
in which case the entire servient tenement is subject to the
servitude and the owner of the dominant tenement may select a route
provided only that he does so
civiliter
modo
. See
Nach
Investments (Pty) Ltd v Yaldai Investments (Pty) Ltd & another
1987 (2) SA 820
(A)
at 831C-E. The right of way in question was created in respect of the
specific route and is a definite servitude.
[25]
In
Gardens Estate, Ltd v Lewis
1920 AD 144
at 150 this court
said:
‘
A definite
servitude having originally been constituted, it could only be
altered by mutual consent. In this respect a servitude
as constituted
differs from a servitude created
simpliciter
(D. 8.1.9). In the latter case, according to
Voet
8.3.8, the owner of the dominant tenement has the election where to
lay the line, which he must however exercise
civiliter
.
If he has once exercised his election, he cannot afterwards change.
But the owner of the servient tenement would have the right
to do so
provided the new route is as convenient as the old one (
cf.
McCabe v. Rubidge,
1913 A.D. 441).
When
Voet
,
1.50, says that the owner of the servient tenement has the right to
point out another route to that which has been agreed upon
(
vel
conventione designatum fuerat
) he
speaks of servitudes created
simpliciter
.’
[26]
This was the position in our law until the decision in
Linvestment
CC v Hammersley & another
[2008] ZASCA 1
;
2008 (3) SA 283
(SCA). After having had regard to comparative law (paras 27-30) the
court developed the law to also permit relocation of definite
servitudes at the instance of the owner of the servient tenement in
the following terms:
“‘
It is
declared that if the owner of a servient tenement offers a relocation
of an existing defined servitude of right of way the
dominant owner
is obliged to accept such relocation provided that:
(a)
the servient owner is or will be materially
inconvenienced in the use of his property by the maintenance of the
status quo
ante
;
(b)
the relocation occurs on the servient
tenement;
(c)
the relocation will not prejudice the owner of the
dominant tenement;
(d)
the servient owner pays the costs attendant upon
such relocation including those costs involved in amending the
registration of
the title deeds of the servient tenement (and, if
applicable, the dominant tenement).’”
[27]
In the result, the law in respect of the relocation of a definite
servitude was broadly equated to that pertaining to the relocation
of
servitudes created generally. However, two observations need to be
made in the light of the aforesaid passage from
Gardens Estate
and of what was said in
Rubidge v McCabe & Sons and Others
1913 AD 433.
There Lord De Villiers CJ said at 441:
‘
As owners of
the dominant tenements the owners must exercise their rights in a
manner least oppressive to the defendant and as owner
of the servient
tenement the defendant has the right, after due notice to the
plaintiffs, to divert the course of the road provided
– and
this is the most important proviso – it does not by such
diversion make the use of the road less convenient or
more expensive
to the plaintiffs.’
In
the same case Solomon JA said at 445:
‘
The
evidence, in my opinion, does not establish that there was a public
road over the farm, but rather that a servitude of right
of way
existed, the plaintiffs’ farms being the dominant and the
defendant’s farm the servient tenements. And if that
be the
legal position it was competent to the defendant upon giving due
notice to the plaintiffs to divert the course of such road,
provided
that the new road was equally practicable and convenient to them.’
[28]
The first observation is that the owner of a servient tenement in
respect of a servitude created generally, has the right to
change its
route, provided that he or she does not cause inconvenience to the
owner of the dominant tenement. The first requirement
for the
relocation of a defined servitude in
Linvestment
is that the
owner of the servient tenement must show that he or she will be
materially inconvenienced if the route is not changed.
I agree with
Van der Walt p 423 that this burden is justifiable:
‘
Since the
switch to a flexible rule that allows for unilateral relocation
involves a serious infringement of the dominant owner’s
right
to be consulted if a right originally created by contract is
subsequently amended, it is reasonable to expect that the servient
owner who wants the route changed should start off by proving clearly
that the reasonable use of her land would be significantly
impaired
if the right of way is not relocated.’
This
is equally applicable to a right of way originally created by
acquisitive prescription.
[29]
The second observation is that under our law a right of way
simpliciter
could not be relocated if the proposed new route would be less
convenient, less practical or more expensive to the owner of the
dominant tenement. I do not think that Heher JA intended the third
requirement in
Linvestment
to depart from this
formulation. The draft indigenous code of law that he regarded as ‘a
distillation of pure Roman-Dutch
law in its final stage of
development’ (para 23), stated in this regard that the dominant
owner may not refuse an offer by
the servient owner, at his cost, of
an equally good and convenient (‘
even
goede en even gemakkelijke
’)
route. A wide meaning must be ascribed to the prejudice referred to
in the third requirement in
Linvestment.
[30]
The first and second respondents did not even attempt to show the
first requirement in
Linvestment
. I am by no means convinced
that the third respondent established this requirement, but as this
was not argued, I confine myself
to the issue of prejudice. It will
be recalled that the proposed new route would provide access to
Ventersdraai at its south-eastern
corner. This is approximately three
kilometres from where the existing road enters Ventersdraai and gives
access to the homestead
and the network of farm roads on
Ventersdraai. Thus, the proposed new route would result in the first
appellant having to construct
a new road over about three kilometres
at its own expense. There was some debate on the papers as to the
geophysical nature of
such new road and as to the precise cost
thereof, but that is not necessary to determine. It suffices to say
that the need to construct
such road would
per se
cause
material prejudice to the first appellant. The court a quo failed to
recognise this and ought to have refused the second
declaratory order
for this reason too.
Conclusion
[31]
It follows that the appeal must be upheld. The appellants are
entitled to their costs in the court a quo and on appeal, which
should be borne by the respondents, jointly and severally.
[32]
The appellants brought an application to adduce further evidence on
appeal. The application was opposed and replying affidavits
were
filed. The application was rightly not pressed before us. It is trite
that further evidence should only in exceptional circumstances
be
admitted on appeal. Nothing exceptional was shown. On the contrary,
the proposed further evidence dealt with subsequent events
and sought
to amplify evidence already before the court. The costs of this
application should be borne by the appellants.
[34]
For these reasons it is ordered:
1 The appellants’
application to adduce further evidence on appeal is dismissed with
costs.
2 The appeal is upheld
with costs to be paid by the respondents, jointly and severally.
3 The order of the court
a quo is set aside and replaced with the following:
‘
The
application is dismissed with costs to be paid by the respondents,
jointly and severally.’
________________________
C
H G van der Merwe
Judge
of Appeal
APPEARANCES
For
Appellants: S W Davies
Instructed
by:
JW
Wessels & Partners Inc, Pretoria
C/O
Kampherbeek & Pogrund Attorneys, Polokwane
Honey
Attorneys, Bloemfontein
For
Respondents: M P van der Merwe SC
Instructed
by:
Jarvis
Jacobs Raubenheimer Inc, Hillcrest
C/O
Davel De Klerk Kgatla Inc, Polokwane
Rossouws
Attorneys, Bloemfontein