Lombard and Others v Go Lokile Farm (Pty) Ltd and Others (3701/2016; 4987/2016) [2017] ZALMPPHC 8 (25 May 2017)

Lombard and Others v Go Lokile Farm (Pty) Ltd and Others (3701/2016; 4987/2016) [2017] ZALMPPHC 8 (25 May 2017)

The court found that the disputed road is not a public road, as there was no proclamation and the general public did not use it for a continuous period of 15 years. The Brand family's use was limited to access from their farms and did not confer public status. There was no registered servitude in favour of the Brand family, but even if a right of way existed, the applicants as owners of the servient tenement were entitled to relocate the road, provided the alternative route was as convenient and constructed at their own cost. Expert evidence confirmed the suitability of the alternative route and refuted environmental objections. The interdict against the fifth respondent was refused, as...

Citation
[2017] ZALMPPHC 8
Parties
Applicant: P Lombard; Applicant: LJ Engelbrecht; Applicant: Eating Habits (Pty) Ltd; Respondent: Go Lokile Farm (Pty) Ltd; Respondent: LL-L Investments (Pty) Ltd; Respondent: JJPC Brand Administrators; Respondent: Trustees of Time to Time of the Pieter Fourie Junior Trust; Respondent: Basie Brand; Respondent: Carl D Plessis; Respondent: Road Agency Limpopo; Respondent: MEC: Department of Public Works, Limpopo
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
25 May 2017
Case Number
3701/2016; 4987/2016
Procedural Posture
Review Application / Final Judgment After Opposed Motion and Spoliation Application
Outcome
Application granted in part; disputed road declared private; applicants entitled to relocate road; interdict against fifth respondent refused; spoliation order discharged; costs awarded against third and fifth respondents.
Judges
E M Makgoba
Legal Topics
Relocation of Right of Way, Servitude Variation, Public Vs Private Road, Spoliation, Interdict, Environmental Impact Assessment
Land and Property Civil Procedure Relocation of Right of Way Servitude Variation Public Vs Private Road Spoliation Interdict Environmental Impact Assessment

Case Brief

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Parties

P Lombard

Applicant

LJ Engelbrecht

Applicant

Eating Habits (Pty) Ltd

Applicant

Go Lokile Farm (Pty) Ltd

Respondent

LL-L Investments (Pty) Ltd

Respondent

JJPC Brand Administrators

Respondent

Trustees of Time to Time of the Pieter Fourie Junior Trust

Respondent

Basie Brand

Respondent

Carl D Plessis

Respondent

Road Agency Limpopo

Respondent

MEC: Department of Public Works, Limpopo

Respondent

Procedural Posture

Review Application / Final Judgment After Opposed Motion and Spoliation Application

Legal Issues

  1. 1 Is the disputed gravel road a public road or a private road under South African law?
  2. 2 Do the Brand family (third and fifth respondents) have a legal right to continued use of the existing road, and on what basis?
  3. 3 Are the applicants entitled to relocate the existing road and substitute it with an alternative route?

Ratio Decidendi

The court found that the disputed road is not a public road, as there was no proclamation and the general public did not use it for a continuous period of 15 years. The Brand family's use was limited to access from their farms and did not confer public status. There was no registered servitude in favour of the Brand family, but even if a right of way existed, the applicants as owners of the servient tenement were entitled to relocate the road, provided the alternative route was as convenient and constructed at their own cost. Expert evidence confirmed the suitability of the alternative route and refuted environmental objections. The interdict against the fifth respondent was refused, as...

Court Disposition

Application granted in part; disputed road declared private; applicants entitled to relocate road; interdict against fifth respondent refused; spoliation order discharged; costs awarded against third and fifth respondents.

Orders

  • It is declared that the disputed road marked in red on the map annexed to the founding affidavit is not a public road.
  • The applicants are entitled to relocate the existing road over the specified farms.