South Africa Case Law

Flemix Property Investments (Pty) Ltd v Weyers and Another - Appeal (A98/2023)

Flemix Property Investments (Pty) Ltd v Weyers and Another - Appeal (A98/2023) [2024] ZAFSHC 122 (2 May 2024)

Court

Free State High Court, Bloemfontein

Case number

A98/2023

Judges

Daffue, Van Rhyn, Reinders

The court held that Weyers, as applicant, bore the onus to prove that the servitude of right of way by necessity over Tienfontein was the shortest and least burdensome route to the nearest public road. Flemix demonstrated that an alternative, shorter route exists across Zwartlaagte. Weyers failed to show that the alternative route was impracticable or that the route over Tienfontein was necessary according to the legal standard. The existence of material disputes of fact regarding the practicality and burden of the respective routes rendered the matter unsuitable for determination by way of m…

Source excerpt

• Servitude Of Right Of Way
• Way Of Necessity
• Praedial Servitude
• Motion Proceedings
• Onus Of Proof

Wulffers v Boxer Dale Holdings (Pty) Ltd and Others (1224/2021)

Wulffers v Boxer Dale Holdings (Pty) Ltd and Others (1224/2021) [2022] ZASCA 172 (1 December 2022)

Court

Supreme Court of Appeal

Case number

1224/2021

Judges

Ponnan, Plasket, Mabindla-Boqwana, Nhlangulela, Windell

The Supreme Court of Appeal held that disputed facts about a right-of-way route could not be resolved on affidavit and dismissed the application.

• Servitude Of Right Of Way
• Way Of Necessity
• Motion Proceedings
• Landlocked Property
• Servitude-of-right-of-way
• Way-of-necessity

Du Bruyn NO and Another v South African National Road Agency and Others (3765/2015)

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

Court

Eastern Cape High Court, Port Elizabeth

Case number

3765/2015

Judge

RB Laher

The court dismissed an application for a way of necessity servitude because the applicant did not prove the route, width, or suitability of the proposed access.

• Way Of Necessity
• Servitude Registration
• Joinder Of Parties
• Disputes Of Fact
• Motion Proceedings
• Way-of-necessity

Wyngaarden and Another v Fernbosch Trading CC (19032/2011)

Wyngaarden and Another v Fernbosch Trading CC (19032/2011) [2012] ZAWCHC 131 (2 February 2012)

Court

Western Cape High Court, Cape Town

Case number

19032/2011

Judge

Veldhuizen

Urgent application for interim access over neighboring land to build a dwelling was dismissed because the applicants lacked supporting facts and had created the necessity themselves.

• Servitude Of Right Of Way
• Way Of Necessity
• Interim Relief
• Property Access
• Servitude-of-right-of-way
• Way-of-necessity

Du Plooy v Bitflow Investments 220 (Edms) Bpk (5448/08, 5023/2006)

Du Plooy v Bitflow Investments 220 (Edms) Bpk (5448/08, 5023/2006) [2008] ZAFSHC 122 (30 October 2008)

Court

Free State High Court, Bloemfontein

Case number

5448/08, 5023/2006

Judge

Van Zyl, R

The court held that the applicant's proposed amendment does not introduce a new cause of action but clarifies the particulars of claim to properly reflect the elements of a right of way of necessity, namely access from the isolated property to the nearest public road and the absence of reasonable alternative routes. The amendment is necessary to ventilate the real dispute and is bona fide, having been prompted by the court's earlier ruling. Any prejudice to the respondent, particularly regarding expert evidence, can be remedied by recalling the witness if required. The respondent's opposition…

Source excerpt

• Amendment Of Pleadings
• Right Of Way
• Way Of Necessity
• Costs Orders

Sanders N.O. and Another v Edwards N.O. and Others (A 36/2002)

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)

Court

Western Cape High Court, Cape Town

Case number

A 36/2002

Judges

R.G. Comrie, J.A. Van der Westhuizen

The court held that a way of necessity could be granted for the southern part of a farm despite existing access from the north, because the alternative access was informal and inadequate.

• Servitude Of Right Of Way
• Way Of Necessity
• Landlocked Property
• Agricultural Access
• Servient And Dominant Tenement
• Servitude-of-right-of-way