Van Wyk and Another v Helmut (APPEAL 209 of 1994) [1994] NAHC 16 (1 December 1994)

Van Wyk and Another v Helmut (APPEAL 209 of 1994) [1994] NAHC 16 (1 December 1994)

Applicants established that road 2101 was impracticable for farming purposes and that the only practical access was over respondent's property. However, as the main relief sought was perpetual and not interim, and as alternative remedies existed, the court granted a precarious via ex necessitate (final interdict of limited duration) pending the Roads Board's decision, not a perpetual or interim interdict as originally sought.

Citation
[1994] NAHC 16
Parties
First Applicant: Petrus Francois Van Wyk; Second Applicant: Adriaan Johannes Van Wyk; Respondent: Helmut Rothel
Court
High Court
Jurisdiction
Namibia
Judgment Date
1 December 1994
Case Number
APPEAL 209 of 1994
Procedural Posture
Civil Motion / Ruling on Return Day of Rule Nisi
Outcome
precarious via ex necessitate granted; main relief refused; no order as to costs
Legal Topics
Servitude, Right of Way, Interdicts, Via Ex Necessitate, Alternative Relief
Source Language
English
Property Law Civil Procedure Servitude Right of Way Interdicts Via Ex Necessitate Alternative Relief

Case Brief

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Parties

Petrus Francois Van Wyk

First Applicant

Adriaan Johannes Van Wyk

Second Applicant

Helmut Rothel

Respondent

Procedural Posture

Civil Motion / Ruling on Return Day of Rule Nisi

Legal Issues

  1. 1 Whether applicants are entitled to a right of way via ex necessitate over respondent's property
  2. 2 Whether applicants are entitled to a perpetual or interim interdict pending the Roads Board's decision
  3. 3 Whether alternative remedies preclude the relief sought

Ratio Decidendi

Applicants established that road 2101 was impracticable for farming purposes and that the only practical access was over respondent's property. However, as the main relief sought was perpetual and not interim, and as alternative remedies existed, the court granted a precarious via ex necessitate (final interdict of limited duration) pending the Roads Board's decision, not a perpetual or interim interdict as originally sought.

Court Disposition

precarious via ex necessitate granted; main relief refused; no order as to costs

Orders

  • Respondent to allow applicants right of way along route x - xl as indicated on map PW 2 annexed to first applicant's affidavit until the Roads Board decides on the proclamation application dated 6 October 1994.
  • Paragraphs 2.2 and 2.3 of the Rule Nisi confirmed pending the Roads Board's decision.