English v C J H Harmse Investments CC and Another (4028/02) [2006] ZAKZHC 18; 2007 (3) SA 415 (N) (14 March 2006)

IN THE HIGH COURT OF SOUTH AFRICA REPORTABLE

NATAL PROVINCIAL DIVISION CASE NO 4028/02

In the matter between

J D ENGLISH Plaintiff

And

C J H HARMSE INVESTMENTS CC First Defendant

REGISTRAR OF DEEDS FOR THE

PROVINCE OF KWAZULU-NATAL Second Defendant

________________________________________________________________

REASONS FOR JUDGMENT

HURT J

The Plaintiff’s claim in this matter started out as a claim for two rights of way over the First Defendant’s property and a claim for an order declaring that the Plaintiff had acquired a portion of the First Defendant’s property by prescription. Two of these claims have been disposed of by compromise. In regard to the remaining claim, the contention that it had been acquired by prescription was disposed of by the grant of an order absolving the First Defendant from the instance at the close of the Plaintiff’s case. The issue which remains to be resolved is whether the Plaintiff has discharged the onus of proving that he is entitled to a way of necessity (via ex necessitate) in this regard. It will be convenient, in this judgment, to refer to the aerial photograph, which has been highlighted in various colours at various material places, which follows page 31 in Exhibit C, the report presented by Mr C S Henderson of Measured Farming (Natal). I shall refer to this document simply as “the aerial photograph”. The R56 main road from Pietermaritzburg to Richmond, in the area where the various farms are situated, runs from east to west before traversing a wide bend to the south. The First Defendant’s property, the farm Wycliffe, has its northern boundary coinciding with the R56, for all practical purposes. Its western boundary is in the form of an apex situated a little to the east of the R56 after the bend to which I have referred. The southern boundary travels back in an east south-easterly direction and then takes a north-north-easterly direction before turning due north to meet the northern boundary in the vicinity of the R56. Virtually at the point where the eastern boundary changes direction from north-north-east to due north, there is a gate situated in the fence dividing Wycliffe from its neighbour on the east. This gate has been referred to in the evidence as “the east gate”. The property to the south and west of Wycliffe is the farm Longlands which is owned by the Plaintiff. The property adjacent to Longlands, on the east, is referred to as “Lot 33” and is also owned by the Plaintiff, both Longlands and Lot 33 having been acquired by him in 1977. When the Plaintiff took occupation of Longlands and Lot 33, the farm Wycliffe was owned by a Dr Biggs. I was informed that Dr Biggs was the person who had arranged for Wycliffe to be created as a subdivision of Longlands to enable him to run a farm stall at the roadside. For this reason the area of Wycliffe (some 63 hectares) was much smaller than that of the surrounding properties. It is common cause that, because of its small area, Wycliffe could not be regarded as a viable cattle-farming proposition. It was sold to Biggs because the regulations in force at the time restricted the right to operate a farm stall at the roadside to the owner of the property on which the stall was situated.

When the Plaintiff acquired Longlands and Lot 33, he, like his predecessor, made regular use of certain of the roads on Wycliffe. The history of this use has been outlined in the ruling which I gave on the application for absolution from the instance at the close of the Plaintiff’s case. I will not repeat it here.

The First Defendant, a close corporation of which Mr C J Harmse is the sole member (and for reasons of convenience I intend to refer to Mr Harmse in this judgment as “the Defendant”) acquired Wycliffe in June 2002. In about August, 2002, there was an altercation between the Plaintiff and the Defendant in relation to the use of the short cut across Wycliffe to the east gate and the Defendant locked the gate on his property and refused the Plaintiff and his employees any further access through that gate. This refusal resulted in the Plaintiff’s action for a defined and registered right of way.

The Plaintiff’s claim, on the remaining issue, is that it is necessary for him to have access to the north-eastern sector of Lot 33. I will go into the causes of the alleged necessity in some detail, shortly. His suggestion is that he should be allowed to register a right of way (on the basis that it is a via ex necessitate) from a point in the vicinity of the gate from Wycliffe on to the R56 main road at the place where the words “trading store”

appear on the aerial photograph and then to traverse Wycliffe in an easterly direction to link up with the purple and black road from the point inscribed “proposed right of way” and onwards up to the “east gate”.

Before considering the merits of the Plaintiff’s claim, it will be convenient to refer briefly to the legal situation. The history of the law relating to rights of way, at least up to 1977, was conveniently collected in an instructive article entitled “Noodweg” by C G van der Merwe and G F Lubbe, in the 1977 Tydskrif vir Hedendaagse Romeins-Hollandse Reg, pages 111 to 125. The authors pointed out that the original Roman law was based on the Roman concept of “absolute ownership”

resulting in the restriction of the circumstances in which rights of way were conferred. Thus Voet 8.3.4 (Gane’s translation, page 467) stipulated that:

“In addition to the right of way to be established or refused at the discretion of the owner of a servient tenement, there is furthermore a right of way which must be granted of necessity by the owner of a servient tenement when the neighbouring farm has no access and egress. It is commonly called a ‘way of necessity’.”

The absolute approach of the Roman law contrasted with the “community-based approach” to be discerned in the German law. As Roman-Dutch law developed, it appears that the “community-based approach” tended to water down the “absolute approach”. Whilst, therefore, any subdivision of land which had no egress save over a neighbouring property (referred to generally as “blokland” in the Roman-Dutch law) was entitled, as of right, to a via ex necessitate over the neighbouring property, the circumstances in which an owner became entitled to claim a right of way without the consent of the neighbour whose property would be affected, were extended. At page 116 of the article “Noodweg” the learned authors referred to some of the Roman-Dutch writers who had adopted the more flexible, Germanic-orientated approach to the circumstances justifying a via ex necessitate. However, they stressed that writers such as Glück and Van Leeuwen made it clear that the mere fact that an existing route is simply longer or more inconvenient than a right of way over the neighbour’s

property would be is not a ground for granting that right of way. The authors dealt with a number of decisions prior to 1977 in which the Courts granted rights of way to properties which were not actually landlocked but where the existing means of access to public roads or railway sidings were unduly complicated. These decisions, the authors contrasted with that in Trautman N.O. v Poole 1951 (3) SA 200 (C) where Steyn J, after a careful summary of the Roman-Dutch law, stated:

“A via necessitatis is awarded on the basis of what is necessary and not merely because it is reasonably required.”

Steyn J had referred, as authority for this statement, inter alia to Van Leeuwen, Censura Forensis (2.14.34) and to the decision in van Schalkwyk v Du Plessis and Others 17 S.C. 454. The authors pointed out that, in the latter case, after referring to the proposition that a via necessitates can only be conferred where “the only possible approach to a public road” is over the neighbour’s land, De Villiers CJ had said ( at p 464) : -

“There may perhaps be cases in which the alternative route would be so difficult and inconvenient as to be practically impossible, and in such cases the Court might be justified in affording relief subject to compensation, and the other restrictions mentioned by Voet (8.3.4). The present case is not, however, of such a nature. It is an inconvenience – I must say a great inconvenience – for the plaintiff not to be able to use the road in question in order to bring his cattle from his mountain farm onto the nearest public road or to his other farms. But the inconvenience to the plaintiff is not so great as to justify the Court in putting the defendants out to the still greater inconvenience of having a cattle track through their narrow and cultivated strip of land. The plaintiff can reach the public road by a track over the farms ‘Lous Legplek’ and ‘Pampoenfontein’ and although that track is more circuitous and less convenient than the one claimed, it is certainly not impracticable as a means of access to and egress from his farm”

The authors further pointed out that, having made the statement, quoted earlier, in the Trautman case, Steyn J went on to examine the evidence relating to the various alternative routes available to the plaintiff, and, in so doing, stated that

“ . . . in the magistrate’s view it would be unreasonable and not necessary to expect (the owner of the proposed dominant tenement) to build a road 300 yards in length and on an incline to link up with the Doble road; but ‘unreasonableness’ is not the test and, in the absence of any proof that the cost of linking up with this road from (such owner’s) home would be immoderate or disproportionate, the grant of a via necessitates was not justified.”

The authors correctly indicated that both of these decisions demonstrate that the Court was prepared to consider factors other than the simple one of whether the plaintiff’s land was effectively landlocked without the right of way. In the Van Schalkwyk case, de Villiers CJ weighed the inconvenience to the plaintiff against the disruptive effect that a registered right of way would have on the defendant’s rights of ownership, having particular regard to the nature of the defendant’s property and the defendant’s use of it. In the Trautman case, Steyn J indicated, by implication, that a via necessitatis might be justified if the cost to the owner of the “dominant tenement” of obtaining access by some other means was “immoderate or disproportionate”. An “immoderate” or “disproportionate” cost, the authors pointed out, would only be relevant if the Court were to consider that something less than absolute necessity might be taken to justify the grant of a right of way with its consequent disruption and limitation of the servient owner’s rights.

The authors expressed the view that the rigorous approach which is, at first sight, reflected in Trautman’s case was plainly not intended to override the numerous decisions prior to 1951 in which the Courts had held that “absolute necessity” was not the sole basis upon which a via necessitatis can be granted. In the course of development of the Roman-Dutch law and the common law in this country, the requirements have plainly been relaxed to a certain extent and the authors called for a reconsideration of the general approach to “ways of necessity” in order to “lay down a logical and appropriate set of rules” for this particular form of servitude. Their article met with almost immediate acceptance and approval by the Appellate Division. In the case of Van Rensburg v Coetzee 1979 (4) SA 655 (the appeal in which was actually pending at the time when the authors published their article), Jansen JA devoted his analysis of the law largely to the opinions expressed and the authorities referred to by Messrs van der Merwe and Lubbe. In doing so he dealt with situations wider than those with which this judgment is concerned. It will suffice for me to refer only to a single passage of his judgment, in connection with the question of the circumstances in which a way of necessity will be granted by the Court in the face of opposition by the owner of the “servient tenement”, namely the passage at page 671A-C which is to the following effect: -

“Dit is egter nie nodig om vir die doeleindes van die onderhawige geval uitsluitsel oor die fundamentele benadering te gee nie. Dit is genoeg om te aanvaar dat ‘n aanspraak om ‘n noodweg ontstaan as ‘n grondstuk geografies ingesluit is en geen uitweg het nie, of, as ‘n uitweg wel beskikbaar is, dit egter ontoereikend is en die posisie daarop neerkom dat die eienaar

“has no reasonably sufficient access to the public road for himself and his servants to enable him, if he is a farmer, to carry on his farming operations” (Lentz v Mullin 1921 EDC 268 @270 . . . .).”

Viae ex necessitate were divided, in the Roman-Dutch law, into two categories. This division persists in our law. The first was the “via precario” and the second a “jus viae plenum”. The former is a right generated by an “emergency situation” proper. Thus, in cases of fire, poaching, stock theft or illness of stock, in which prompt and effective action is essential in the interests of the farming operation, a farmer invariably has the right to a “short cut” across his neighbour’s property where the means of access on his own farm would not permit him to deal effectively with the emergency. The second is a more permanent and regular means of access over his neighbour’s property to enable the farmer to conduct a viable farming operation.

In this particular case, the issue as to whether the Plaintiff has a “jus viae precario” has been disposed of, because the First Defendant has acknowledged that the Plaintiff has a right of way to the east gate in any emergency situation. The issue between the parties relates to the question of whether a jus viae plenum should be constituted by defining a way across Wycliffe which can be regularly used by the Plaintiff as a means of access to Lot 33.

Mr Dickson, for the Plaintiff, contended that the developments in the law to which I have referred above, the relaxation of the requirement of “absolute necessity” and the test of “reasonably sufficient access”, are readily discerned in more recent

decisions. He referred to the judgment of Swart J in Naudé v Ecoman Investments & Others 1994 (2) SA 95 (T), particularly at pages 100 to 102, and to the much more recent decision of Sanders N.O. & Another v Edwards N.O. & Others 2003 (5) SA 8 (C). In the former, Swart J held that the grant of a jus viae plenum, based on conditions and requirements at the date of grant, did not have the effect of fixing the manner and frequency of use of the right of way in perpetuity in the future. He expressed the view that it was necessary for the law to change with the times, and referred to the question posed by Jansen JA in Van Rensburg’s case at page 672C-E. In the case of Sanders (supra) the Court held that the fact that the plaintiff could construct a road across his own property which would give him access to a remote portion of it was not fatal to his claim for a much shorter and more convenient right of way over a portion of his neighbour’s

property. Because of the topography of his property, which included steep slopes and a ravine which was impassable in wet weather, the cost of construction of the type of road which would be necessary for the plaintiff’s farming operations, was of the order of R600 000. The Court accepted that this expenditure would have the effect of making the proposed farming operations uneconomical. It is apparent from the judgment (although the precise nature of the right of way over the servient tenement is not described) that the inconvenience occasioned to the owner of the servient tenement as a result of the registered right would be minimal, compensation in the amount of R7 500 having been agreed. It is apparent from the judgment that the touchstones of the decision were economic viability of the required faming operation and what may be loosely described as “an appropriate balance of convenience”. In striking such balance of convenience, it must be borne in mind that the practical effect of the grant of a jus viae plenum is virtually identical to an expropriation of property. It must also be borne in mind that the owner of the servient property must needs have his peaceful occupation, to which he has a right qua owner, disrupted by the use of the via. These considerations were plainly borne firmly in mind in a number of the decisions referred to in the van Rensburg case. Although no mention was made, in the Sanders case, of the Bill of Rights in the Constitution, it occurs to me that the provisions of section 25 of the Constitution Act, Act No 108 of 1996, blend very harmoniously with this approach. The entrenched right in section 25(1) is that:-

“No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.”

This entrenched right

“may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society …”

(section 36 (1))

Thus, a Court will always be careful not to interfere with rights of ownership until dictates of reasonableness and fairness necessitate such interference. Indeed, Mr Dickson, in developing his argument, submitted that the Plaintiff’s demands in this case are restricted to a right of way which he needs for “normal farming purposes” and that he would be prepared to submit to appropriate conditions of servitude confining his use of the via to these purposes. These requirements, Mr Dickson contended, are the essence of reasonableness and are to be contrasted with the unreasonable and arbitrary refusal of access by the Defendant. I do not, however, agree that the test for the conferment of a jus viae plenum has developed into one where the reasonableness of the Plaintiff’s request is the sole criterion. Nor, in my view, has the Defendant exhibited a capricious and indefensible attitude toward the Plaintiff’s claim. It is necessary, at this stage, to discuss the facts as they emerged in the course of the trial.

It is common cause that there is a constructed farm road which traverses Longlands and Lot 33, emerging at the east gate. At the commencement of the trial, an inspection in loco was held in the course of which a variety of vehicles travelled along this road with various points of materiality being indicated by the parties and their expert witnesses from time to time. I consciously refrain from recording my own observations in the course of this exercise, save to say that the road was by no means impassable. The photographs taken by Mr Henderson in August 2004 and December 2005 and incorporated in his report in Exhibit G, convey a fairly realistic impression of what this road is like. So do the photographs appended to the expert’s report prepared by the engineer, Mr Isaac. Mr Isaac’s view was that the road had been comparatively well designed with a view to avoiding excessive slopes. He expressed the view that, with regular,

uncomplicated maintenance such as the removal of obstacles and vegetation, and the filling in of erosion, the road should be passable most of the time. His view was challenged particularly in two respects, namely in relation to the gully which exists at the lowest point of the road and in relation to a “wet patch” which, it was contended, remained wet and slippery for most of the

time and rendered that particular area of the road dangerous to navigate. Mr Isaac expressed the view that, even in the event of heavy rainfall, which, it was common cause, would result in the water in the gully flooding the road, the gully should clear within a matter of hours and that portion of the road would become passable again. At worst, the problem in this regard could be permanently overcome by casting a concrete causeway at the site at a total cost of about R40 000, but Mr Isaac adhered to his opinion that this would be unnecessary expenditure. As to whether the “wet patch” prevented ordinary use of the road, there was inconclusive debate between counsel for the Plaintiff and Mr. Isaac, the latter stating to the Court that he was not aware of any such patch and had not seen one even though he had inspected the road in excessively wet conditions during December, 2005. It was put to him that the “wet patch” existed because part of the road was in perpetual shade, and his response was that this could be cured by removing trees. The inspection in loco took place during a very dry period and it was common cause that the “wet patch” was not in existence at the time. Mr. Isaac insisted that, if there was a portion of the road which was prone to wetness in a degree that rendered it impassable or difficult to negotiate, then he would have expected to see some signs that the road surface had been churned up by tyres, or even by cattle, and he had detected no such signs even at the height of the wet season. Finally, Mr. Isaac pointed out that this type of aberration in a road could simply be cured by laying an appropriate surface in the affected area and making provision for proper drainage. The expert witness Mr Henderson expressed similar views to those expressed by Mr Isaac. Mr Henderson presented an aerial photograph on which he had superimposed the farm roads on Longlands and the road from the boundary between Longlands and Lot 33 to the east gate (the latter depicted in red). According to the records and measurements which he made, it would, even in the current condition of the road on Lot 33, take approximately 27 minutes to travel from the border between Longlands and Lot 33 and the east gate. Both experts expressed the firm view that this time could be greatly decreased by comparatively minimal maintenance of the road.

The result is that I accept that, in ordinary conditions, the plaintiff could easily create a situation where he could travel from one extremity of Lot 33 to the other in something less than 27 minutes. In so far as there may be any problem with flooding and consequent impassability in the gully area, this could be permanently obviated by the construction of a causeway at a cost of R40 000. In my view, the allegations about the “wet patch” were not material to the issue. It is against these parameters that the reasonableness of the contention that the Plaintiff should be given a registered right of way over Wycliffe to the east gate must be measured. In doing this, one must bear in mind, too, that, in terms of the tender of a via precario, the Plaintiff would be entitled to ask for access over Wycliffe on those occasions when the gully is, in fact , flooded and the road on Lot 33 impassable.

The Plaintiff’s operations on Longlands and Lot 33 are mainly beef and game farming. I understand that from time to time the Plaintiff permits hunting parties to hunt the game on his property, although the frequency with which this occurs did not emerge clearly from the evidence. He stated in his evidence that the difficulty and delay occasioned by using the road across Lot 33 placed efficient farming operations on the eastern sector of that property in jeopardy. He said that he needed the quick access afforded by the short cut over Wycliffe in order to deal properly with matters such as sick cattle, regular dipping operations etc. The emphasis, though, in his evidence was on situations of emergency which might arise and which could no be efficiently dealt

with if his access to this part of Lot 33 was confined to the road on that property. The evidence relating to emergency situations

subsequently became superfluous in the light of the tender by the Defendant of a via precario.

In the course of his evidence, the Defendant insisted that the creation of a permanent right of way over Wycliffe would defeat the very purpose with which he had acquired the property. He stated that he had bought the property because he regarded it as a “perfect private retreat”. There is a “bush camp” constructed on the property in a location where it is not immediately visible from the main road and in a fairly central position on the property itself. There is also a dwelling house on the western side of the property but the Defendant explained that he and his family live in the bush camp when they visit the property. From his evidence it appears that the Defendant is engaged in creating a game conservation area on the property. He has constructed game fencing around the borders and he insisted that he wants to keep incursions on to the property by vehicles and/or people and/or cattle down to a minimum. He said that the existence of an entrance to his property over which he had no control would give rise to a continuous sense of insecurity. He contended that regular passage over the property by employees, and possibly guests, of the Plaintiff would constitute a material infraction of the environmental amenities which he had been careful to develop on his

property. As to the question of whether a right of way was “necessary” in the sense of enabling the Plaintiff to conduct viable farming operations on Lot 33, the Defendant pointed out that he had closed off the right of way in August 2002, on the understanding that he would allow the Plaintiff access on the basis of a via precario. He said that such access had been sought only on three occasions since August 2002. One of those occasions was for the purpose of checking the water on Lot 33, another was to enable the Plaintiff to carry out fence repairs and a third was when the Plaintiff and the Defendant had co-operated in the burning of firebreaks. His evidence in this regard was challenged but faintly.

It was put to him that, on a fourth occasion, the Plaintiff had asked for permission to cross Wycliffe to the east gate in the company of his wife. The Defendant stated that he could not recall this incident. It was put to the Defendant in cross-examination that his refusal to allow the Plaintiff the facility of an 850 metre long road as an alternative to the long and arduous route over Lot 33 was unreasonable. He strenuously denied this. I must say that I do not think that the Defendant was taking an unreasonable attitude at all. The Plaintiff placed no evidence before the Court which would establish that the absence of a right of way through the east gate has led to any specific problems which detract from the Plaintiff’s ability to conduct viable farming operations on Lot 33. The defendant testified to the fact that he frequently saw cattle grazing on Lot 33 and that the Plaintiff appeared to have had no difficulty in tending to these animals at this location.

In these circumstances it is clear that the prejudice which the Defendant would have to put up with if a right of way were registered in favour of the Plaintiff is significant. This, in my view, is not a case where the needs of the Plaintiff are such that it is necessary to reduce the Defendant’s full rights of ownership of his property by the registration of a right of way over it. The Plaintiff has failed to discharge the onus of proving such necessity and, for that reason, I made the following order:

1. It is declared that the Plaintiff is entitled to the via ex necessitate tendered by the First Defendant over the First Defendant’s property Wycliffe to the eastern gate (referred to in the evidence in the trial) at the border between Wycliffe and Lot 33, in times of emergency.

2. Save as set out in paragraph 1 hereof the First Defendant is absolved from the instance.

3. The Plaintiff is ordered to pay the First Defendant’s costs of the trial on 27th, 28th February 2006 and 2nd March 206.

4. Save as set out in paragraph 3 hereof, each party is to bear its own costs of the trial.

5. Paragraphs 3 and 4 of this order are to be provisional until 31st March 2006. Before that date either party will be entitled to set the matter down for hearing on the question of costs on not less than five days’ written notice to the other party.

PIETERMARITZBURG

30 March 2006

DATES OF HEARING : 22 – 25 August 2005

27 & 28 February and 2 March 2006

DATE OF JUDGMENT : 14 March 2006

PLAINTIFF’S COUNSEL : Mr A J Dickson SC

INSTRUCTED BY : J Leslie Smith & Company

332 Loop Street

DEFENDANT’S COUNSEL : Mr C P Hunt, SC

INSTRUCTED BY : Mason Incorporated

3rd Floor, Fedsure House

251 Church Street