Aventura Ltd. v Jackson and Others (290/05) [2006] ZASCA 103; 2007 (5) SA 497 (SCA) (15 September 2006)

Aventura Ltd. v Jackson and Others (290/05) [2006] ZASCA 103; 2007 (5) SA 497 (SCA) (15 September 2006)

The Supreme Court of Appeal held that the necessity for a right of way is determined by whether it is the only reasonably sufficient means of access to the landlocked property, not by whether regulatory authorisations have been obtained. The requirement for environmental authorisation is a separate matter and does not affect the legal necessity for access. The practical issue of obtaining authorisation before constructing the road can be resolved by making the grant of the right of way conditional upon such authorisation. The servitude should be registered only after authorisation is obtained and compensation is paid. The route of the servitude should be agreed upon by the parties or...

Citation
[2006] ZASCA 103
Parties
Appellant: Aventura Limited; Respondent: Jackson, Hugh Stanley; Respondent: Jackson, Martin Brian; Respondent: Jackson, Lynda-Ann
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
15 September 2006
Case Number
290/05
Procedural Posture
Civil Appeal / Appeal From Cape High Court
Outcome
Appeal dismissed with costs, except as set out in the substituted orders.
Judges
Harms, Nugent, Conradie, Lewis, Maya
Legal Topics
Right of Way of Necessity, Servitude Registration, Environmental Authorisation, Compensation for Servitude
Land and Property Environmental Law Right of Way of Necessity Servitude Registration Environmental Authorisation Compensation for Servitude

Case Brief

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Parties

Aventura Limited

Appellant

Jackson, Hugh Stanley

Respondent

Jackson, Martin Brian

Respondent

Jackson, Lynda-Ann

Respondent

Procedural Posture

Civil Appeal / Appeal From Cape High Court

Legal Issues

  1. 1 Whether the respondents are entitled to a right of way of necessity over the appellant's property.
  2. 2 Whether the grant of a right of way should be conditional upon obtaining environmental authorisation.
  3. 3 How compensation for the servitude should be determined.

Ratio Decidendi

The Supreme Court of Appeal held that the necessity for a right of way is determined by whether it is the only reasonably sufficient means of access to the landlocked property, not by whether regulatory authorisations have been obtained. The requirement for environmental authorisation is a separate matter and does not affect the legal necessity for access. The practical issue of obtaining authorisation before constructing the road can be resolved by making the grant of the right of way conditional upon such authorisation. The servitude should be registered only after authorisation is obtained and compensation is paid. The route of the servitude should be agreed upon by the parties or...

Court Disposition

Appeal dismissed with costs, except as set out in the substituted orders.

Orders

  • Subject to the owner of Portion 36 obtaining all necessary permissions and authorisations to develop the property and construct an access road, and paying compensation to Aventura, Aventura must take all reasonable steps to register a servitude of right of way over its property in favour of Portion 36, at the cost...
  • The servitude is to follow a route agreed upon by the owners or determined by a court, providing reasonably direct and convenient access from the national road to Portion 36 via Portion 10.