JJPC Brand Administrators and Another v Lombard and Others (1223/2017) [2019] ZASCA 55 (1 April 2019)

JJPC Brand Administrators and Another v Lombard and Others (1223/2017) [2019] ZASCA 55 (1 April 2019)

The Supreme Court of Appeal held that the respondents failed to discharge the onus of proving that the existing road was not a public road, as their evidence regarding official searches was insufficiently particularized. Even if the road were not a public road, the appellants had established a praedial servitude of right of way by acquisitive prescription. The law permits relocation of a defined servitude only if the servient owner is materially inconvenienced and the relocation does not prejudice the dominant owner. The respondents did not demonstrate material inconvenience, and the proposed relocation would require the appellants to construct a new road over three kilometres at their...

Citation
[2019] ZASCA 55
Parties
Appellant: JJPC Brand Administrators; Appellant: Basie Brand; Respondent: P Lombard; Respondent: L J Engelbrecht; Respondent: Eating Habits (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 April 2019
Case Number
1223/2017
Procedural Posture
Civil Appeal / Appeal From Limpopo Division of the High Court, Polokwane
Outcome
Appeal upheld. Orders of the court a quo set aside and replaced with dismissal of the application with costs to be paid by the respondents, jointly and severally.
Judges
Navsa, Tshiqi, Wallis, Van der Merwe, Eksteen
Legal Topics
Servitude of Right of Way, Acquisitive Prescription, Public Road Status, Relocation of Servitude
Land and Property Civil Procedure Servitude of Right of Way Acquisitive Prescription Public Road Status Relocation of Servitude

Case Brief

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Parties

JJPC Brand Administrators

Appellant

Basie Brand

Appellant

P Lombard

Respondent

L J Engelbrecht

Respondent

Eating Habits (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Limpopo Division of the High Court, Polokwane

Legal Issues

  1. 1 Whether the existing road is a public road or a servitude of right of way.
  2. 2 Whether the respondents are entitled to relocate the route of the servitude of right of way.
  3. 3 Whether the relocation would materially prejudice the dominant tenement.

Ratio Decidendi

The Supreme Court of Appeal held that the respondents failed to discharge the onus of proving that the existing road was not a public road, as their evidence regarding official searches was insufficiently particularized. Even if the road were not a public road, the appellants had established a praedial servitude of right of way by acquisitive prescription. The law permits relocation of a defined servitude only if the servient owner is materially inconvenienced and the relocation does not prejudice the dominant owner. The respondents did not demonstrate material inconvenience, and the proposed relocation would require the appellants to construct a new road over three kilometres at their...

Court Disposition

Appeal upheld. Orders of the court a quo set aside and replaced with dismissal of the application with costs to be paid by the respondents, jointly and severally.

Orders

  • The appellants’ application to adduce further evidence on appeal is dismissed with costs.
  • The appeal is upheld with costs to be paid by the respondents, jointly and severally.