Sanders N.O. and Another v Edwards N.O. and Others (A 36/2002) [2002] ZAWCHC 60; [2003] 1 All SA 108 (C); 2003 (5) SA 8 (C) (7 November 2002)

Sanders N.O. and Another v Edwards N.O. and Others (A 36/2002) [2002] ZAWCHC 60; [2003] 1 All SA 108 (C); 2003 (5) SA 8 (C) (7 November 2002)

The court held that the existence of access to a public road from the northern part of the respondents' farm does not preclude the grant of a way of necessity from the southern part, which is effectively isolated by a steep ravine. The evidence established that constructing an all-weather road through the ravine is economically prohibitive and that the alternative access over Mr. Abrecht's property is informal, non-permanent, and could be withdrawn at any time, thus not constituting sufficient legal access. The court found that the respondents' need for permanent, reliable access for commercial protea farming justified the grant of a servitude of right of way over the appellants'...

Citation
[2002] ZAWCHC 60
Parties
Appellant: Johannes Wilhelmus Sanders N.O.; Appellant: Betty Cuyler Sanders N.O.; Respondent: William Henry Phillip Edwards N.O.; Respondent: Johan Colin Edwards N.O.; Respondent: Aldyth Louisa Edwards N.O.
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
7 November 2002
Case Number
A 36/2002
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court Judgment
Outcome
Appeal dismissed with costs.
Judges
R.G. Comrie, J.A. Van der Westhuizen
Legal Topics
Servitude of Right of Way, Way of Necessity, Landlocked Property, Agricultural Access, Servient and Dominant Tenement
Land and Property Servitude of Right of Way Way of Necessity Landlocked Property Agricultural Access Servient and Dominant Tenement

Case Brief

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Parties

Johannes Wilhelmus Sanders N.O.

Appellant

Betty Cuyler Sanders N.O.

Appellant

William Henry Phillip Edwards N.O.

Respondent

Johan Colin Edwards N.O.

Respondent

Aldyth Louisa Edwards N.O.

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court Judgment

Legal Issues

  1. 1 Whether a way of necessity can be granted when the applicant's property already has access to a public road.
  2. 2 Whether the necessity for a servitude of right of way was established on the evidence.
  3. 3 Whether the historical use of a neighbouring property constitutes sufficient alternative access to a public road.

Ratio Decidendi

The court held that the existence of access to a public road from the northern part of the respondents' farm does not preclude the grant of a way of necessity from the southern part, which is effectively isolated by a steep ravine. The evidence established that constructing an all-weather road through the ravine is economically prohibitive and that the alternative access over Mr. Abrecht's property is informal, non-permanent, and could be withdrawn at any time, thus not constituting sufficient legal access. The court found that the respondents' need for permanent, reliable access for commercial protea farming justified the grant of a servitude of right of way over the appellants'...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.
  • The magistrate's order granting a servitude of right of way over the appellants' property is upheld.