Du Bruyn NO and Another v South African National Road Agency and Others (3765/2015) [2016] ZAECPEHC 54 (16 September 2016)

Du Bruyn NO and Another v South African National Road Agency and Others (3765/2015) [2016] ZAECPEHC 54 (16 September 2016)

The court found that portion A is landlocked and that a servitude over neighbouring land is necessary to provide access to a public road. However, the applicant failed to discharge the onus of proving that the specific route and width of the proposed servitude are necessary and suitable. There is a real dispute of fact regarding the existence and suitability of the diversion, and the applicant did not establish why a 5-meter wide servitude is required. Furthermore, MTO Forestry, as an affected party, was not joined, which is a material procedural defect. The disputes of fact cannot be resolved on the papers, and the applicant did not request referral to oral evidence or inspection in...

Citation
[2016] ZAECPEHC 54
Parties
Applicant: Lofty Du Bruyn N.O.; Applicant: Elsabé Du Bruyn N.O.; Respondent: South African National Road Agency Ltd; Respondent: Minister of Agriculture, Forestry and Fisheries; Respondent: Minister of Public Works; Respondent: Registrar of Deeds
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
16 September 2016
Case Number
3765/2015
Procedural Posture
Civil Application / First Instance Judgment
Outcome
Application dismissed with costs, including costs of two counsel for second and third respondents.
Judges
RB Laher
Legal Topics
Way of Necessity, Servitude Registration, Joinder of Parties, Disputes of Fact, Motion Proceedings
Land and Property Civil Procedure Way of Necessity Servitude Registration Joinder of Parties Disputes of Fact Motion Proceedings

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 9 Party arguments 2
Sign in to unlock

Parties

Lofty Du Bruyn N.O.

Applicant

Elsabé Du Bruyn N.O.

Applicant

South African National Road Agency Ltd

Respondent

Minister of Agriculture, Forestry and Fisheries

Respondent

Minister of Public Works

Respondent

Registrar of Deeds

Respondent

Procedural Posture

Civil Application / First Instance Judgment

Legal Issues

  1. 1 Whether the applicant is entitled to a way of necessity over erf ..2 to access a public road.
  2. 2 Whether the route and width of the proposed servitude are necessary and suitable.
  3. 3 Whether there is a material dispute of fact that precludes resolution on the papers.

Ratio Decidendi

The court found that portion A is landlocked and that a servitude over neighbouring land is necessary to provide access to a public road. However, the applicant failed to discharge the onus of proving that the specific route and width of the proposed servitude are necessary and suitable. There is a real dispute of fact regarding the existence and suitability of the diversion, and the applicant did not establish why a 5-meter wide servitude is required. Furthermore, MTO Forestry, as an affected party, was not joined, which is a material procedural defect. The disputes of fact cannot be resolved on the papers, and the applicant did not request referral to oral evidence or inspection in...

Court Disposition

Application dismissed with costs, including costs of two counsel for second and third respondents.

Orders

  • The application is dismissed with costs, including costs of two counsel for second and third respondent.