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[2013] ZAWCHC 106
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Van Rhyn NO and Otherrs v Fleurbaix Farm (Pty) Ltd (A 488/2012) [2013] ZAWCHC 106; 2013 (5) SA 521 (WCC); [2013] 4 All SA 236 (WCC) (8 August 2013)
REPORTABLE
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
Case
No: A 488/2012
Before: The Hon. Mr Justice Yekiso
The Hon. Mr Justice Binns-Ward
The Hon. Ms Acting Justice Savage
Date of hearing: 24 July 2013
Date of judgment: 8 August 2013
In the
matter between:
WERNER
RUDOLPH VAN RHYN N.O.
......................................................
First
Appellant
HELENA
CATHARINA VAN RHYN N.O.
..............................................
Second
Appellant
IBRAHIM
MIA N.O.
.
.....................................................................................
Third
Appellant
(in their
capacity as trustees of The Waterfall Trust)
and
FLEURBAIX
FARM (PTY) LIMITED
..............................................................
Respondent
Mandament van spolie
– alleged spoliation of a right
of way over existing route in circumstances where alternative route
provided – necessity
for applicant to allege nature of the
right concerned. Where right of way is a via simpliciter, closure of
an existing route and
its replacement by the servient tenement holder
with an adequate and non-prejudicial alternative route does not
amount to unlawful
dispossession of the dominant tenement holder’s
right of way.
Mandament van spolie
–
right of way –
quasi-possession. Use of established route of right of way does not
in general equate to physical possession
by the right holder of the
road concerned. Earlier judgments suggesting otherwise distinguished
or not followed.
JUDGMENT
BINNS-WARD J:
The appellants are the trustees of The Waterfall Trust. In that
capacity they are the registered owners of Portion 6 of the farm
Fleurbaai No. 1040, Stellenbosch. They have come on appeal from a
judgment at first instance directing them ‘
to restore to
[the respondent]
rights of access to its property, Portion 4….of
the farm Fleurbaai….over the
[appellants’]
property….by way of the route to the south of the dam
marked by a red and blue line on the aerial photograph-map attached
and marked “A”
’.
1
The appeal is with the leave of the learned judge at first instance.
The facts of the case are simple and not materially in dispute.
The properties owned by the appellants and the respondent,
respectively, comprise of adjoining subdivisions of Farm 1040
Stellenbosch.
The parties acquired the properties from a company
which had held both land units in common ownership. Access to both
properties
has been exercised via an extension of a nearby public
road in a suburb of Stellenbosch (Van Rheede Road). The extension
road
runs over private land and is the subject of a servitude of
right of way registered in favour of the property of the appellants,
as well as that of the respondent. At the time that the parties
acquired their respective properties from the common predecessor
in
title (in December 2011 in the case of the appellants, and six weeks
later, at the end of January 2012, in the case of the
respondent) a
gravel road ran across the appellants’ property from the point
at which the aforementioned extension road
transected the eastern
boundary of the property to a point on its western border with the
respondent’s property. The route
taken by that road was that
marked by a red and blue line on the aerial photograph-map
incorporated in the order made by the
court
a quo
. The
respondent’s property is landlocked in the sense that it has
no direct access to a public road, and, in order to exercise
its
aforementioned registered servitutal right of way to Van Rheede
Road, the respondent would require access over the appellants’
property.
At the time of the proceedings at first instance the respondent
company’s property was undeveloped land. There was an
intention, however, for a house to be built on the property to be
occupied by one of the company’s directors. All three
of the
respondent’s directors resided in Stellenbosch and they
regularly (‘once or twice a week’) used to jog
along the
road over the appellant’s property for recreation and
exercise. One of them also used to use the road when coming
to the
respondent’s property in connection with the planning of the
house to be built there.
Early in 2012 (in fact on the very day that the respondent company
took transfer of its property) the appellants caused one of
the
respondent’s directors to be advised that they would be
closing the gravel road across their property so as to enable,
amongst other things, the area between the main house on the
property and a nearby dam to be landscaped as part of a garden
extension. The respondent was advised that an alternative access
road contiguous to the Eerste River along the northern boundary
of
the appellants’ property would be made available. The
appellants thereafter constructed the alternative access road
at a
cost of nearly R3 million. Its availability coincided more or
less with the closure of the gravel road.
The remedy which the respondent claimed in its application for
anti-spoliatory relief (a
mandament van spolie
) was on its
face consistent with what might have been expected had it been
asserting a defined right of servitutal access. The
respondent’s
founding papers, however, conceded that it did not have a defined
servitutal right of access over the appellants’
property along
the route of the original access road. The respondent relied in its
application for spoliatory relief only on
the disturbance of what it
contended was its right of access via the established route. That
this reflects a correct reading
of the respondent’s case was
confirmed by the respondent’s counsel during argument at the
hearing of the appeal.
The
mandament van spolie
is directed at restoring possession
to a party which has been unlawfully dispossessed. It is a robust
remedy directed at restoring
the status
ante quo
,
irrespective of the merits of any underlying contest concerning
entitlement to possession of the object or right in issue;
2
peaceful and undisturbed possession of the thing concerned and the
unlawful despoilment thereof are all that an applicant for
a
mandament van spolie
has to show.
3
(Deprivation is unlawful if it takes place without due process of
law, or without a special legal right to oust the possessor.
4
)
The underlying principle is expressed in the maxim ‘
spoliatus
ante omnia restituendus est
’. The fundamental purpose of
the remedy is to serve as a tool for promoting the rule of law and
as a disincentive against
self-help.
5
It is available both in respect of the dispossession of corporeal
property and incorporeal property. In the case of incorporeal
property it is the possession of the right concerned that is
affected - a concept described as ‘quasi-possession’
to
distinguish it from physical possession.
6
The manifestation of the dispossession of the right in such a case
will always entail the taking away of an externally demonstrable
incidence, such as a use, arising from or bound up in the right
concerned.
It follows that in a case in which the applicant for anti-spoliatory
relief seeks restoration of a right of use, the nature of
the
alleged right upon which the use is founded must be identifiable on
the papers because it is the subject matter of the alleged
dispossession. This is not to suggest that a label must be provided;
it is sufficient if the nature of the right involved may
be inferred
from the factual allegations. Identifying the alleged right is
something quite distinguishable from establishing
that it actually
exists or that it legally vests in the claimant. Something in the
nature of a
prima facie
case has to be made out. This
necessarily includes identifying what it is, whether it be corporeal
or incorporeal, that was possessed
by the applicant; for in order to
show that one has been deprived of possession one has to be able to
show what it is that one
has been despoiled of. Thus where an
interference with the exercise of a servitude of right of way is
concerned, the applicant
must allege the existence of the servitude
and the manner in which its exercise has been frustrated by the
respondent.
In
Bon Quelle
(Edms) Bpk v Munisipaliteit van Otavi
[1988] ZASCA 123
;
1989
(1) SA 508
(A),
[1989] 1 All SA 416
, for example, the applicant
municipality alleged the existence of a servitude and its exercise
over many years as the bases for
contending that the respondent’s
summary termination of the water flow from the spring on its land to
the municipality’s
reservoir had dispossessed it unlawfully of
a utility of which it had been in peaceful and undisturbed
possession. The respondent
disputed the existence of the alleged
servitutal right, but, applying the
ante omnia
principle
described earlier, the Court declined to engage with the merits of
that contest. The Appellate Division determined
that the
municipality was entitled
ante omnia
to have the status
ante
quo
restored on the assumption that the municipality did indeed
have a servitutal right to the water supply. Absent the allegation
of the servitude - that is an identification of the nature of the
right relied upon - it is difficult, however, to see how the
Court
could have granted the relief. It would not have been sufficient on
the facts of the case had the municipality merely alleged
that the
water supply which it had enjoyed had been cut off because the
respondent owner turned off his tap.
7
Thus where a right is concerned, dispossession is established by the
applicant demonstrating that it has been deprived of a previously
exercised utility
and
identifying the right in terms which it
contends it is entitled to exercise the utility. It is the
relationship between the two
that
prima facie
establishes the
possessory element that is an essential part of the case of an
applicant for relief under the
mandament
, for it identifies
the subject matter of the alleged despoilment.
8
In
First
Rand Ltd. t/a Rand Merchant Bank and Another v Scholtz NO and Others
2008 (2) SA 503
(SCA);
[2007] 1 All SA 436
, at para 13, the following basis for the need
for the characterisation of the right in an application for a
mandament van spolie
was stated: ‘
The
mandement
van spolie
does not have a
‘catch-all function’ to protect the
quasi
possessio
of
all kinds of rights irrespective of their nature.
In cases such as where a
purported servitude is concerned the
mandement
is obviously the appropriate remedy,
but not where contractual rights
are in dispute
or
specific performance of contractual obligations is claimed:
its purpose is the protection of
quasi possessio
of certain rights. It follows that the
nature of the professed right, even if it need not be proved, must
be determined or the
right characterized to establish whether its
quasi possessio
is deserving of protection by the
mandement
’
(footnotes omitted). What I have sought to suggest, by way of
addition to what was held in
Scholtz
,
is that the nature of the alleged right relied upon might also be
relevant for the purpose of determining whether the allegedly
spoliatory conduct did in fact amount to despoilment, for there
cannot be dispossession if the conduct of the alleged despoiler
does
not in law infringe or derogate from the alleged right. Thus the
nature of the right can be material for determining whether
the
conduct complained about by the applicant for a
mandament
van spolie
amounts to a spoliation.
Compare, for example, the exercise undertaken by PC Combrink J
(McCall and Theron JJ concurring)
in
Tigon
Ltd v Bestyet Investments (Pty) Ltd
2001 (4) SA 634
(N) at 642D-645E,
9
where the court examined the juristic nature of the rights of a
holder of shares in a company in order to determine whether the
expungement of its name from the share register constituted
dispossession for the purpose of being able to obtain relief in
terms of the
mandament van spolie
.
This is an incident of the requirements that the
spoliatus
must prove ‘possession of a kind which warrants the protection
accorded by the remedy, and that he was unlawfully ousted’.
10
As mentioned, in the current matter the respondent did not rely on a
defined or registered right of way.
11
So what was the nature of the right upon which the allegation of
dispossession was founded? The answer was not clearly provided
in
the respondent’s founding affidavit. What was plainly
contended for was a right of access over the appellants’
property by reason of the landlocked character of the respondent’s
property, and the need for a connection between it and
the
aforementioned servitutal right of way over a third party’s
property from the end of Van Rheede Street. But that was
not the
question that gave rise to the proceedings in the court of first
instance; it was the respondent’s claim to have
been
dispossessed of the right to use the route described by the gravel
road. It is that feature of the claim that required a
closer
examination of the nature of the right relied upon.
The characterisation is material in the current matter because,
unlike the position in some of the cases cited by the respondent’s
counsel, like
Willowvale Estates CC and Another v Bryanmore
Estates Ltd
1990 (3) SA 954
(W) and
Van Wyk v Kleynhans
1969
(1) SA 221
(GW), the alleged dispossession did not amount to a
frustration or taking away of existing access; it merely entailed
substituting
the existing route of the alleged right of way over the
appellants’ property with another, also over the appellants’
property. The respondent thus enjoyed uninterrupted access across
the appellants’ land. Depending on the nature of the
servitude, if it were a
via simpliciter
for example, a change
of route by the servient tenement holder might not derogate from the
right of way involved. Before turning
to consider the point it is
convenient at this stage to distinguish some of the other cases on
which the respondent’s counsel
relied to argue that a
spoliation had been proved.
Counsel referred to
Knox and Another v Second Lifestyle
Properties (Pty) Ltd and Another
[2012] ZAGPPHC 223 (11 October
2012)
12
.
In
Knox
the Court gave no consideration to the content of the
right upon which the applicant for spoliatory relief purported to
rely
and appears instead to have treated the use by the applicant of
the road in issue as having been equivalent to its physical
possession.
13
14
With respect, that seems to me to involve rather strained reasoning.
It is more realistic to regard the use of the road to exercise
access merely as the manifestation of the right of way, that is as
indicative of quasi-possession of the right, rather than as
a
manifestation of physical possession of the road. In contrast to the
position in
Knox
, in the current case the appellants
pertinently raised the respondent’s failure to allege a
cognisable basis for its claim
to access
along the route of the
gravel road
to contend that the respondent had not shown what it
was that it had supposedly held in quasi-possession.
This case is also distinguishable on the facts from
Nienaber v
Stuckey
1946 AD 1049
, on which the respondent’s counsel
sought to rely to support the respondent’s claim that it had
been despoiled by
virtue of having been deprived of the use of the
existing route of access irrespective of the provision of
alternative access.
In that matter the applicant for spoliatory
relief relied on the locking of a gate that provided access directly
from his land
to an adjoining piece of land on the respondent’s
property, which he claimed to have leased for crop planting
purposes.
The spoliator in
Nienaber
pointed out that the gate
in question was not the only means of access to the land in issue
and sought on that basis to contend
that the applicant had not been
deprived of possession
of the land
by the act of the locking
of the gate, which was the manifestation of despoilment relied upon
by the applicant. Greenberg JA
rejected this contention,
observing that using the other gate would require the applicant to
travel a distance of ‘approximately
1
¼
miles
from his homestead, and that its use by him would necessitate his
travelling about 350 yards over respondent’s lands
to the land
in issue, whereas the gate in question leads directly from
appellant’s farm to the land in dispute’.
15
The property subject of the alleged spoliation in
Nienaber
’s
case was the ploughing land that was occupied in terms of the
alleged lease, not the right of access thereto, nor indeed,
a
servitude of right of way. It is clear on a proper reading of the
judgment that the court regarded access through the locked
gate as
an incident of the applicant’s physical possession of the
land. As I seek to demonstrate below, the question in
the current
case is not about physical possession of the route of access, but
about whether changing the existing route of a
right of way amounted
to a despoilment of the respondent’s alleged right of way over
the appellants’ property. In
my judgment the respondent’s
reliance on
Nienaber
was misplaced.
It is time to revert to the question of the nature of the right of
way that the respondent purports to enjoy over the appellants’
property. The averments in the respondent’s founding papers
were construed by the appellants’ counsel as having amounted
–
if they were capable of being construed to have characterised any
right at all - to an allegation that the respondent
had a right of
access over the appellants’ property as a
via necessitatis
or way of necessity. The appellants argued that a way of necessity
is established only when a court makes an appropriate order,
which
it will do only after the party requiring the right of way has
proved that such will provide the only reasonably sufficient
means
of gaining access to the landlocked property, and not merely a
convenient means of doing so.
16
In this respect the appellants’ counsel laid emphasis on the
exposition by Jansen JA in
Van Rensburg v Coetzee
1979
(4) SA 655
(A), at 671D: ‘…
dat sonder 'n hofbevel
dié aanspraak
[dws ’n aanspraak op ’n
noodweg]
nie registrasie van ’n reg van noodweg tov ’n
ander se grond moontlik maak nie; en, verder, dat alvorens sodanige
bevel verkry is, betreding van die ander se grond skynbaar
onregmatig sal wees. (Vgl
Neilson v Mahoud
1925
EDL 26
te 34.
)’
17
and contended that in the absence of any allegation of a pertinent
court order the applicant’s founding papers fell short
of
establishing - even only
prima facie
– quasi-possession
of a cognisable right entitling it to access over the appellant’s
property along in the indicated
route by means of a way of
necessity.
The appellants’ counsel argued that although the respondent
company’s founding papers might arguably have described
that
it had an ‘expectation’ or ‘claim’
18
to a right of way of necessity over the appellants’ property,
they were nevertheless lacking the required allegations to
establish
a purportedly cognisable right to use the gravel road on that basis.
They submitted that the most that the respondent
might have been
entitled to was an interim interdict allowing it to traverse the
appellants’ property pending the determination
of a claim for
a servitude of right of way of necessity. In such a context,
assuming it were able to make out a sufficient case,
all that the
respondent would have been entitled to by way of interim
interdictory relief would have been a
via necessitate
simpliciter
, that is an unspecified right of way, as distinct
from one defined in the order to follow a particular route (cf.
Van
Rensburg v Coetzee
supra, at 668F-G and the other authorities
cited there). Thus, even on the indicated approach, the respondent
would not have
been entitled to claim that access should be given
along the route of the gravel road, as distinct from along the road
constructed
by the appellants near the river. Had the argument been
addressed on a proper reading of the respondent’s founding
papers,
I consider that it would have been unassailable, and the
appellants would have succeeded in demonstrating that the purported
right upon which the respondent relied was one that was not legally
cognisable, and therefore in reality nothing more than an illusion
in respect of which it could not sensibly claim to have been
dispossessed.
On a more generous reading of the founding papers it might, however,
be discerned that the company was relying on a right of
way over the
appellants’ property arising from the consequences of the
company’s land having been sequestered from
direct or
effective access to the outside world by reason of the effect of the
subdivision of the farm of which both properties
originally formed
part and the separate disposition of the two portions in question,
which had previously been held in common
ownership. I have described
such a reading as generous because the history of the subdivision of
the land was not set out with
any particularity in the respondent’s
founding papers. Little more was expressly alleged than that, as
already noted, the
two subdivisional units of which the appellants
and the respondent are currently the owners were previously held in
common ownership
and that both units enjoyed the same registered
servitutal right of access over a third party’s land to Van
Rheede Road.
On the generous approach to the founding papers that I
am willing to take for present purposes the respondent could be
taken
to have identified its property as being what the Roman-Dutch
jurists called ‘
blokland
’, brought about by
subdivision.
As a general rule in such circumstances a right of way inures in
favour of the isolated property over the adjoining subdivisions
to
afford access to a public road. Taking this generous view of the
evidence in favour of the respondent distinguishes the position
from
that which ordinarily obtains when the issue of a way of necessity
arises in a general context. This much is evident from
the
discussion in
Van Rensburg v Coetzee
supra, at 673B-675C. In
the context which I am willing to assume pertained, a right of way
is taken to have been tacitly afforded
by the subdividing owner in
favour of the sequestered subdivision over the other land units
interposed by the act of subdivision
between it and a public road.
Jansen JA quoted Van Leeuwen’s commentary in
Roomsch -
Hollandsch Regt
2.21.12 in this regard as follows:
So wanneer een stuk land aan twee, of meer deelen werd
gedeeld, en gesplitst, moet het agterste syn uitpad over het voorste
houden,
al waar't dat daar van niet was gesprooken: om dat de
splitsing van het land de gebuuren geen dienstbaarheid kan opdringen.
arg 1.23. in fin ff de servit Rusticor Praed
junct 1.66. ff de contr empt
. Ten ware het
sodanig gelegen was, dat het voor te land, en agter te water uit
mogt, sou het verkogte met het uitpad te water tevreden
moeten zyn:
Volgens het geen hier voor is gezegd. Van gelyken so iemand het
voorste had verkogt, en het agterste behouden.
arg
d 1.23. in fin ff de servit Rust praed junct 1.12. ff commun
praedior
.
So mag ook een stuk land, het welk een dienstbaarheid
van uitpad, of uitweg op, of over een ander heeft, aan so veel deelen
gedeelt
werden als men wil: en verkrygt elk deel het selve regt van
overpad, of uitweg, van het agterste over het voorste, en so voort
.
per d 1.23. # 3. ff eod Bart Caepoll de Servit Rusticor Praed cap. 1.
num 12. & cap 3. num 7
.
19
and, in the course of a consideration of how South African
jurisprudence has given effect to the concepts thus articulated,
noted
a close correlation between the approach adopted by our courts
and the position under the English law set out in Halsbury’s
Laws of England
4
th
ed vol. 14 sv. ‘
Rights
of Way arising by Implication of Law
’ at para 152
et
seq
. The learned judge of appeal referred in this respect in
particular to the following passage at para 153 (which should be
read,
I would respectfully suggest, conscious that it seeks to draw
no distinction between the Roman Law concepts of a servitude of
via
and one of
via ex necessitate
):
A way of necessity is a right of way which the law
implies in favour of a grantee of land over the land of the grantor,
where there
is no other way by which the grantee can get to the land
so granted to him, or over the land of the grantee where the land
retained
by the grantor is land-locked. Such a way cannot exist over
the land of a stranger. It is an easement without which it is
impossible
to make any use of the dominant tenement. The doctrine
which gives rise to a way of necessity is based only upon an implied
grant.
In
Van Rensburg v Coetzee
,
20
the Appellate Division would appear to have approved the following
construction of the first part of the abovementioned passage
from
Van Leeuwen in
Beukes v Crous en 'n Ander
1975 (4) SA 215
(C)
at 220G-H:
Die oorspronklike eienaar van die blokland, assulks
geskep deur onderverdeling, sou dan waarskynlik ook aanspraak kon
maak op registrasie
van 'n serwituut van
via
simpliciter
(dws langs geen bepaalde roete
nie).
Waar die serwituut nie geregistreer word nie, is die
volgende vraag of dit opvolgers
titulo oneroso
van die eienaar van die dienende erf nietemin bind.
Hier skyn die consensus te wees: ja, indien hy kennis
dra van die serwituut; andersins, nee. Vgl Nathan
Common
Law
band 1 para 689 te 493 - 4; Wille
Principles
6de uitg te
224.
21
Jansen JA concluded on this aspect as follows at p. 675C of the
judgment:
Mi behoort nou wel bevestig te word dat die geval van
onderverdeling met gevolglike ontstaan van regte van weg, deur
Van
Leeuwen
bespreek, gekonstrueer moet word as
die verlening van regte van weg deur stilswyende ooreenkoms. Dit volg
dat by ontstentenis van
sodanige ooreenkoms wat teen die huidige
eienaar van grond waaroor 'n uitweg aangevra word, afgedwing kan
word, die keuse van grondstuk
waaroor 'n noodweg moet loop volgens
die beginsel "ter naaster lage en minster schade" moet
geskied, soos hierbo verduidelik.
22
23
It seems to follow that on the facts of the current case as they are
discernible from the respondent’s founding papers
the right of
way for which the company contends - it bears reiteration that we
are concerned here only with the identification
or characterisation
of the right contended for, and not with its actual existence - must
be that which is taken to have been
tacitly conferred in favour of
its property upon the subdivision of Farm 1040, or upon the separate
disposition of the properties
by a former common owner. I say this
accepting that it was implicit in the respondent’s case, as
the conduct of the appellants
would appear to have borne out, that
the appellants had acquired their property with knowledge of the
unregistered right of way.
As will be apparent from the earlier
discussion, the character of the only legally cognisable right of
way arguably thus identifiable
on the founding papers is that of a
via simpliciter
, not one over a defined route. (Indeed on any
reading of the papers, no basis for a defined right of way was made
out.)
It appears to be well established that in the case of a right of
access by means of a
via simpliciter
the owner of the
dominant tenement (i.e. of the respondent’s property in the
current case) has the right to choose the
route; see Voet 8.3.8.
24
It was also implicit in the respondent’s case, on the basis I
have been willing to construe its founding papers, that the
gravel
road constituted the chosen route. Those conclusions beg the
question whether the closure of the gravel road by the appellants
and the contemporaneous provision by them to the respondent of an
alternative route for the exercise of the right of way amounted
to
dispossessing the respondent of its purported right of way. I think
not.
As set out in Voet,
loc cit
, whereas the owner of the
dominant tenement is thereafter bound by the chosen route, the owner
of the servient tenement has liberty
to vary it and to allot for
that purpose a different part of its land, provided that no
prejudice is occasioned thereby to the
dominant tenement holder.
25
26
Whether an alternative route occasions prejudice to the dominant
tenement holder is a question to be determined objectively.
(In a
recent development of the common law, the Supreme Court of Appeal
declared that even in the case of registered defined
right of way,
where previously the law was that the route of such servitude could
be altered only by consensus,
27
the servient tenement holder may now achieve an alteration
unilaterally on the basis declared by the court as follows: ‘…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; [and] (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)’; see
Linvestment CC v Hammersley and
Another
[2008] ZASCA 1
;
2008 (3) SA 283
(SCA);
[2008] 2 All SA 493.)
The nature of the apparently contended for right having been
established, the question of whether the respondent was dispossessed
falls to be determined on the facts with regard to the ambit of the
right. The
Plascon-Evans
rule
28
falls to be applied to resolve any factual dispute on the papers
pertaining to the issue of dispossession.
29
If the facts were to show that the alternative route of access that
the appellants had provided was unreasonable and prejudicial,
then
the closure of the gravel road would have constituted a
dispossession; but otherwise not.
There are numerous decisions which confirm that dispossession
effected by statutory authority does not give rise to a spoliation
claim, provided that the act of dispossession is carried out
strictly within the bounds of and according to the tenor of the
statutory authority concerned. I can see no basis for distinguishing
the position where the alleged act of dispossession is permitted
by
the common law.
30
Where, as in the current case, the right relied upon by the
applicant for spoliatory relief has bound up in it by law a
prerogative
of the servient tenement holder to alter the route, the
dominant tenement holder cannot be heard to say that it has been
dispossessed
of the right it enjoys when the servient tenement
holder exercises that prerogative within the bounds of the
applicable law.
In such a case cognisable dispossession would be
established only if the applicant showed that the servient tenement
holder acted
outside the bounds of its liberty to change the route
by stipulating an alternative that was prejudicial.
31
Turning then on the aforementioned basis to examine the facts more
closely. The only indication in the founding papers of a possible
ground for regarding the alternative route provided by the
appellants as unacceptable was that it runs over lower ground
alongside
the Eerste River, whereas the previously available gravel
road was on higher ground. Against that there is the uncontroverted
evidence adduced by the appellants that the alternative route
provided consists of a professionally designed and constructed road
able to sustain heavy loads of up to 20 tons. Mr Jaco van Zyl, an
associate employed by Nortje & De Villiers Consulting Engineers
CC, the entity responsible for designing and supervising the
construction of the alternative road, averred that the road is ‘of
a much higher standard than any other gravel road on the farm’
and that ‘[t]here is sufficient storm water drainage,
including sub-surface drains to protect the road layer in wet
conditions. The sub-base material is non-plastic and is therefore
of
an acceptable material for a surface layer’. The respondent
did not challenge or contradict this evidence. It is thus
apparent
in my view that the alternative route made available by the
appellants was adequate and does not prejudice the respondent.
The
appellants were merely exercising their prerogative as servient
tenement holders under a servitude of
via simpliciter
when
they closed the gravel road and contemporaneously made an adequate
alternative route of access available for the respondent
to exercise
its alleged right of way.
It follows that the respondent failed to prove that there was an
infringement of or derogation from the right upon which it
apparently relied. The utility available to the respondent in terms
of the right remained substantively unaffected. In the circumstances
its application for spoliatory relief should not have been granted
because the respondent did not prove that it was dispossessed
of the
right.
The respondent applied for leave to adduce additional evidence
before us on appeal in the form of a so-called supplementary
affidavit by the respondent’s attorney. The application was
opposed. The essence of the new evidence that the respondent
wishes
to introduce concerns the conduct of the appellants after the
hearing at first instance. It was averred that in subsequently
instituted proceedings in the North Gauteng High Court the
appellants had stated on affidavit that although they had in the
past been willing to afford alternative access via the road
contiguous to the Eerste River, they had reconsidered matters and
were no longer prepared to enter into discussions with the
respondent regarding an alternative route or any other access road
over the appellants’ property. It was argued that the
additional evidence should be received on appeal because it would
be
in the interests of justice to do so in view of the appellants’
reliance before us, and at first instance, on the provision
of an
alternative route of access.
In a recent full court judgment,
32
the general approach adopted in principle to such applications was
rehearsed as follows:
Applications
of this nature are rarely successful; the court’s power under
s 22 of the Supreme Court Act 59 of 1959 is
exercised sparingly.
The proper approach is summarised in the following dicta of E.M.
Grosskopf JA in
Weber-Stephen Products
Co v Alrite Engineering (Pty) Ltd
[1992] ZASCA 2
;
1992
(2) SA 489
(A), at 507C-F:
It has often been
laid down that, in general, this Court in deciding an appeal decides
whether the judgment appealed from is right
or wrong according to the
facts in existence at the time it was given and not according to new
circumstances which came into existence
afterwards. See
Goodrich v
Botha and Others
1954 (2) SA 540
(A) at 546A;
S v Immelman
1978 (3) SA 726
(A) at 730H;
S v V en 'n Ander
1989 (1) SA 532
(A) at 544I-545C; and
S v Nofomela
[1991] ZASCA 180
;
[1992 (1) SA 740
(A)].
In principle,
therefore, evidence of events subsequent to the judgment under appeal
should not be admitted in order to decide the
appeal. Whether there
may be exceptions to this rule (the possibility of which was not
excluded by Schreiner JA in
Goodrich
's case supra at 546C)
need not now be decided because there are in my view no exceptional
circumstances in the present case which
would render it desirable to
hear such evidence. The new evidence sought to be adduced in effect
amounts to instances of further
infringements of the interdict
allegedly committed after the judgment was given in the present case.
As such they might have formed
the subject of new contempt
proceedings before an appropriate Court of first instance. There does
not seem to me to be any ground
of principle or convenience why we
should, in effect, perform the functions of such a Court.
In
Van Eeden v Van Eeden
1999
(2) SA 448
(C), at 454D-E, this Court (per Comrie J, Griesel J
concurring) held that evidence of events subsequent to the judgment
under
appeal could well be received in principle, but added the
caveat
that
‘
the circumstances in which a Court would exercise
its discretion in favour of such a re-opening would have to be very
special’.
33
The circumstances in the current matter do not warrant taking the
exceptional course of accepting new evidence on appeal. The
respondent applied at first instance for a
mandament van spolie
.
It failed to establish that it had been despoiled of
quasi-possession of the right of way on which it appeared to rely.
Even
if this court were to admit the new evidence, the respondent
would not be entitled to the relief it sought and obtained at first
instance. As at the hearing of the appeal the road contiguous to the
river was still being made available. At best the new evidence
demonstrates a threatened spoliation. Unless and until the threat is
carried out, and a consequent loss of quasi-possession is
established, the respondent is not able to avail of the remedy.
The following orders are made:
The application by the respondent to introduce additional evidence
on appeal is dismissed with costs.
The appeal is upheld with costs, including the costs of two counsel.
The order of the court a quo is set aside and replaced with an order
dismissing the application with costs, including the costs
of two
counsel (to the extent that such were engaged).
A.G. BINNS-WARD
Judge of the High Court
We concur:
N.J. YEKISO
Judge of the High Court
K. M. SAVAGE
Acting Judge of the High Court
Appellants’ counsel: C.M. Eloff SC
P Van Eeden
Appellants’ attorneys Cliffe Dekker Hofmeyr Inc
Johannesburg and Cape Town
Respondent’s counsel A.R. Sholto-Douglas SC
R. Patrick
Respondent’s attorneys Cluver Markotter
Stellenbosch
Walkers Inc
Cape Town
1
I
quote from the order, which followed faithfully the wording of
paragraph (b) of the notice of motion.
2
Cf.
e.g.
Schubart Park Residents' Association and Others v City of
Tshwane Metropolitan Municipality and Another
2013 (1) SA 323
(CC), at para 23-24, citing
Tswelopele Non-Profit Organisation
and Others v City of Tshwane Metropolitan Municipality and Others
2007 (6) SA 511
(SCA) at para 21;
Bon Quelle
(Edms) Bpk v
Munisipaliteit van Otavi
1989 (1) SA 508
(A) at 511 I-512B.
3
Bon
Quelle
supra, at 513E-G;
Nienaber v Stuckey
1946 AD 1049
at 1053.
4
Joubert
et al (ed)
The Law of South Africa
Second Edition vol. 11, para 434.
5
See
e.g.
Mans v Loxton
1948
(1) SA 966
(C), at 975-977.
6
See
Bon Quelle
supra, at 514-5.
7
Cf.
Plaatjie
and Another v Olivier NO and Others
1993
(2) SA 156
(O) (bearing in mind, having regard to the peculiar facts
of the case – which concerned an application for the
restoration
of a water supply to the residents of an informal
settlement - that the litigation was conducted and decided before
the provision
under the current constitutional dispensation of a
basic right to sufficient water and the imposition of a duty on the
state
to implement measures directed at achieving the realisation of
the right).
8
Cf.
the remarks of Thirion J in
Zulu
v Minister of Works, KwaZulu and Others
1992
(1) SA 181
(D), at 187H-188C, referred to with approval in
First
Rand Ltd. t/a Rand Merchant Bank and Another v Scholtz NO and Others
2008
(2) SA 503
(SCA), at para 12, as follows: ‘
The
mandement
van spolie
is
available for the restoration of quasi-possessio of certain rights
and in such legal proceedings it is not necessary to prove
the
existence of the professed right: this is so because the purpose of
the proceedings is the restoration of the status quo
ante and not
the determination of the existence of the right. The quasi-possessio
consists in the actual exercise of an alleged
right or as formulated
in
Zulu v
Minister of Works, Kwazulu, and Others
in
'die
daadwerklike uitoefening van handelinge wat in die uitoefening van
sodanige reg uitgeoefen mag word
'
.
Of course, one cannot determine if the utility involved amounts to
‘die daadwerklike uitoefening van handelinge wat in
die
uitoefening van
sodanige
reg
uitgeoefen
mag word’ (actual conduct consistent with the exercise of
such
right
)
(underlining supplied for emphasis) if one does not know what such
right is.
9
Referred
to in note 14 of the Supreme Court of Appeal’s judgment in
First Rand Ltd. t/a Rand Merchant Bank
and Another v Scholtz NO and Others
supra.
10
Yeko
v Qana
1973 (4) SA 735
(A), at 739G-H.
11
See
para , above.
12
The
judgment is accessible on the SAFLII website at
http://www.saflii.org/za/cases/ZAGPPHC/2012/223.html
.
13
This
much appears especially at para 20-21 of the judgment, where Mothle
J stated:
‘
It is trite that in an application for
spoliation, the applicants need to show only two grounds namely:
20.1 That they were in peaceful and undisturbed
possession of the thing - or in this case, the road; and
20.2 That they have been
unlawfully deprived of that possession. See in this regard
Yeko
v Qana
1973
SA 735A.
[21] Once an applicant establishes these two
grounds, he is entitled to relief in terms of
mandament
van spolie
. The use of an alternative route has no
relevance to the exercise of peaceful and undisturbed possession
[of]
the thing. Further, it is not a defence to the unlawful
deprivation of the thing possessed.
’
(In
Zulu v Minister of
Works, KwaZulu and Others
supra, at190 D-F, the
view was expressed that a holder of a servitude of right does have
physical possession of the road used
for that purpose to the extent
of his use of it. That observation was made in the context of an
articulation by Thirion J of
the need to limit the availability of
the
mandament van
spolie
in respect
of the exercise of rights if the remedy is not to be extended
‘beyond its legitimate field of application and
usefulness’
-see p. 188H-I.
Zulu
did not concern an
alleged despoilment of a right of way, and the learned judge had no
cause to consider what the position as
to spoliation would be in
regard to the alteration by the servient tenement holder of the
route of a right of way over his property.
The equation of the
exercise of a servitutal right of way with physical possession of
the road used for that purpose was also
evident in the unreported
judgment in
Koch
and Others v Backer
[2010]
ZAGPPHC 245 (24 December 2010) (accessible on the SAFLII website at
http://www.saflii.org/za/cases/ZAGPPHC/2010/245.html
), which was another judgment on which the respondent relied. I in
any event respectfully disagree with the characterisation
of the
exercise of a servitutal right of way as amounting
pro
tanto
to
physical possession of the road by which it is exercised. That view
is inconsistent with the view expressed in
Bon
Quelle
supra,
at 514H - I, and in
First
Rand Ltd. t/a Rand Merchant Bank and Another v Scholtz NO and Others
supra, at para 13,
that quasi-possession of a right is demonstrated by conduct which
evidences the use of the right. It seems
to me, with respect, that
Thirion J’s approach ignores the conceptual difference
between possession and quasi-possession,
with a resultant confusion
as to what it is that is held in possession when a right is
concerned.)
14
The
judgment in
Gowrie Mews Investments CC v Calicom Trading 54 (Pty)
Ltd and Others
2013 (1) SA 239
(KZD), to which the respondent’s
counsel referred extensively in argument, also concerned an
application to restore physical
possession of immovable property.
The applicant in that matter contended that it had occupied a
courtyard area in terms of a
special condition of its lease with the
respondent. It proved that it had in any event physically occupied
the space for 12 years,
having partly walled off the open end of the
courtyard and used it as an outdoor extension of its restaurant with
tables and
umbrellas. See the judgment, especially at para 5, 6, 17
and 18.
15
Nienaber
v Stucky
1946 AD 1049
, at 1059.
16
Cf.
e.g.
Aventura Ltd v Jackson NO and
others
2007 (5) SA 497
(SCA). at
para 8.
17
‘…
without
a court order, an entitlement to the registration of a right of way
of necessity over another’s property does not
arise, and
furthermore, until such an order has been obtained, entering onto
the other person’s property would apparently
be unlawful. Cf.
Neilson v
Mahoud
1925
EDL 26
at 34
’.
(My translation.)
18
The
terms offered by the appellants’ counsel to convey the effect
of the Afrikaans word ‘
aanspraak
’ in the sense in
which it was employed in the quoted passage from Jansen JA’s
judgment.
19
‘
So
when a piece of land is divided into two or more parts and
transferred separately, the one that is cut off by being at the
back
must take its access over the one in front, even if nothing has been
expressly agreed to that effect. This is so because
the subdivision
of the land cannot give rise to the imposition of a servitude on the
neighbours
arg
1.23. in fin ff de servit Rusticor Praed junct 1.66. ff de contr
empt
. In truth if
they were so situated that the one in front had access by land and
the one behind by water, the sold off portion
would have to be
satisfied with taking its access by water. Nothing requires to be
stipulated to this effect. The same would
apply
mutatis
mutandis
if one
sold the front portion and retained the rear portion.
arg
d 1.23. in fin ff de servit Rust praed junct 1.12. ff commun
praedior
.
So
also one can have one piece of land that enjoys a right of way over
another’s land and subdivide it into as many pieces
as one
wishes and each will enjoy the same right of way or access from the
rearmost to the foremost and so forth.
per d 1.23. # 3. ff eod
Bart Caepoll de Servit Rusticor Praed cap. 1. num 12. & cap 3.
num 7
’ (My translation.)
20
At
pp. 674H-675C.
21
‘
The
original owner of the sequestered land, brought into being as such
by reason of subdivision, could then probably claim an
entitlement
to the registration of a servitude of
via
simpliciter
(i.e.
by no defined route).
Where
the servitude has not been registered, the next question is whether
it is nevertheless binding on onerous successors in
title of the
servient tenement.
Here
the consensus appears to be in the affirmative if the successor had
knowledge of the servitude, otherwise not. Cf. Nathan
Common Law
vol 1 para 689 at 493 - 4; Wille
Principles
6th ed at 224.’
(My translation.)
22
‘
In
my view it should now be confirmed that the incidence of subdivision
with the consequent arising of rights of way discussed
by
Van
Leeuwen
, must be
construed as the granting of rights of way by tacit agreement. It
follows that in the absence of such an agreement which
could be
enforced against the current owner of property over which access is
sought, the choice of land over which a way of necessity
must be
given falls to be determined in accordance with the principle “
ter
minste lage en minste schade
”
(that which affords the most direct and least prejudicial route), as
explained above.’ (My translation)
23
The
judgment had held in an earlier passage that the ‘
ter
minste lage en minste schade
’ principle did not fall to
applied inflexibly, but with due regard to the practical
considerations arising in the given
case.
24
I
had reference to Gane’s translation.
25
The
position was expressed thus in
Wynne v Pope
1960 (3)
SA 37
(C), at 39F-G (per Van Winsen J):
As I understand the law, a
via ex
necessitate
can be claimed by an owner where it is
necessary for him to have ingress or egress from his property by
such a way in order to
reach a public road. Such a servitude is
created
simpliciter
, and could be altered by
the owner of the servient tenement if he can afford to the owner of
the dominant tenement another route
as convenient as the old route.
For the owner of a dominant tenement to be able to claim the right
of
via ex necessitate
along a specific or
defined route it would be necessary for such servitude to have been
duly constituted, for example, by an order
of Court, or by
prescription, or by any form recognised by the law. (See
Wilhelm
v Norton
,
1935 E.D.L. 143
at pp. 151 - 152;
Gardens
Estate Ltd v Lewis
,
1920 AD 144
at p. 150)
. See also
Rubidge v McCabe & Sons and Others
1913 AD 433
at 441,
where Lord De Villiers CJ said of an undefined right of way ‘
The
legal position is, therefore, that a servitude exists, the
plaintiffs’ farms being dominant tenements and the defendant’s
farm servient tenement. As owners of the dominant tenements the
owners must exercise their rights in the 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 a most important proviso -
he does not by such diversion make the use of the road
less
convenient or more expensive to the plaintiffs.
’
26
In
Koch and Others v Backer
(see note 13, supra) the alternative route
provided by the alleged spoliator was not over the same land unit as
the previously
subsisting route. It also had a number of
characteristics which rendered it an inadequate alternative.
27
See
Gardens Estate Ltd v Lewis
1920 AD 144
, at 150.
28
See
Plascon-Evans
Paints (Tvl) Ltd. v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-635C.
29
Cf.
e.g.
Nienaber v Stucky
supra, at 1053-1054, where Greenberg JA observed
that an applicant for spoliatory relief is required to prove his
possession of
the property in question on the basis required of an
applicant for final relief.
30
The
position with regard to a contractual provision purporting to afford
one of the parties to the agreement a right to unilaterally
dispossess another party thereto of something at will (see e.g.
Nino
Bonino v De Lange
1906 TS 120
, at
123-124) is distinguishable for it arises as a result of a
stipulation by the parties and not as an incidence of law.
31
The
respondent contended in its supplementary written argument submitted
at the request of the court that the servient tenement
holder could
not alter the route without the dominant tenement holder’s
agreement save under authority of a court order.
The contention is
not in accord with the law and is not borne out by anything in the
passage in
Bedford Square Properties
(Pty) Ltd v Erf 179 Bedfordview (Pty) Ltd
2011
(5) SA 306
(SCA), at 309 A-B, upon which the respondent’s
counsel sought to support it. The argument missed the point that it
is incumbent
on the
spoliatus
to allege and prove dispossession and that when a
right of way
simpliciter
is
concerned no dispossession occurs when an existing route is replaced
by an adequate alternative route. In order to establish
dispossession in such a case the
spoliatus
must prove (as was done, for example, in
Koch
and Others v Backer
supra) that the
alternative route afforded by the servient tenement holder is
inadequate or prejudicial. The judgment in
Bedford
Square Properties
was not concerned
with any questions of law that are even remotely relevant in the
current case.
32
Comitis N.O.
and Others v Fairbridge Mall (Pty) Ltd
[2013]
ZAWHC 99 (5 February 2013),
accessible
on the SAFLII website at
http://www.saflii.org/za/cases/ZAWCHC/2013/99.html
.
33
At
para 20 of the judgment.