REPORTABLE

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

Case No.: 8963/2000

In the matter between:

JACKSON, HUGH STANLEY N.O. First Plaintiff

JACKSON, MARTIN BRIAN N.O. Second Plaintiff
JACKSON, LYNDA-ANN N.O. Third Plaintiff

and

AVENTURA LIMITED First Defendant

THE REGISTRAR OF DEEDS, CAPE TOWN Second Defendant
CATWALK INVESTMENTS 341 (PTY) LTD Third Defendant
NORTHPARK TRADING 87 (PTY) LTD Fourth Defendant

________________________________________________________________

th
JUDGMENT DELIVERED ON THIS 25 DAY OF FEBRUARY 2005
________________________________________________________________
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ZONDI, AJ. :

INTRODUCTION

The plaintiffs claim a right of way over the first defendant’s property for the

purpose of constructing a road so as to provide access to the plaintiffs’ property.

The three plaintiffs are the trustees of a family trust, known as Rondeklip
Investment Trust. They are the registered owners of Portion 36 (a portion of
portion 21) of the farm Hanglip 305, situated in the municipality of Plettenberg
Bay, administrative district of Knysna. I shall deal later with full description and
location of this property held by the plaintiffs and which will hereinafter be
referred to as “the plaintiffs’ property” or “dominant tenement”.

The first defendant, Aventura Limited (Aventura) is the owner of Farm 509, which

will hereinafter be referred to as “Aventura property” or “servient tenement”.

The third defendant, Catwalk Investments 341 (Pty) Limited (“Catwalk”) is the

owner of Portion 10 (a portion of Portion 1 of the Farm Hanglip 305) situated in

the municipality of Plettenberg Bay, administrative district of Knysna.

The fourth defendant, Northpark Trading 87 (Pty) Limited (“Northpark”) was

joined in these proceedings as it had in the meantime purchased Aventura

property in terms of the sale agreement concluded on 20 June 2003.

The present proceedings started as application proceedings; the notice of motion

having been issued on 4 December 2000. After the in loco inspection held during

2001, when the need to amend the servitude over the Catwalk property became

apparent, the plaintiffs filed a notice of amendment. The first defendant filed a
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notice of objection to the proposed amendment inter alia on the ground that the

route proposed by the plaintiffs would traverse Catwalk property and Catwalk had

not been joined. As a result of the first defendant’s notice of objection it was

agreed between the parties that the matter should proceed by way of trial.

THE DESCRIPTION OF RELEVANT PROPERTIES

The plaintiffs’ property is located in a coastal forest area. It is landlocked and is

bounded by the Aventura property and a split remainder of portion 6 of the Farm

305 to the south. Keurbooms River Forest Reserve lies on the east of the

plaintiffs’ property and to the north, it is bounded by portion 21 of Farm 305 from

which the plaintiffs’ property was petitioned off in 1959. To the west it is bounded

by the Catwalk property. There is a stream which cuts the plaintiffs’ property into

two sections. This stream runs from north east to south west.

Due to the location of the plaintiffs’ property in relation to the other properties, it

cannot be accessed from its south western portion otherwise than through the

Catwalk property. It is common cause that the plaintiffs’ property, the Aventura

property and the Catwalk property have been declared as sensitive coastal area

in terms of regulations promulgated in terms of section 21 of the Environment

Conservation Act, 73 of 1989 (Regulation R1526 of 27 November 1998). These

regulations prohibit, inter alia, the disturbance of vegetation and earthworks in all

areas identified in the regulations. Consent for the construction of a road is also
  37

required in terms of further regulations promulgated in terms of the Environment

Conservation Act, 73 of 1989.

BACKGROUND TO THE DISPUTE

In or about August 1995 the plaintiffs had unsuccessfully attempted to secure a

servitude of right of way over the first defendant’s property. When the

negotiations failed, the plaintiffs resorted to these proceedings in December

2000.

The nature of the plaintiffs’ claim as set out in paragraph 13 and 14 of the
declaration is indicated as follows:-

“13 The plaintiffs, their family and friends and future beneficiaries of the

trust and their families and friends require access, which includes,

but is unlimited to, vehicular access, to the dominant tenement from

the said public road for their own personal reasons in order to enjoy

the property and, in future in order to erect one dwelling (and with

the necessary consent, two dwellings) on the dominant tenement

which will be used by themselves, their families, future beneficiaries

of the trust and others.

14 For these purposes it is necessary that a right of access be granted

to the nearest public road in favour of the dominant tenement in

perpetuity over the servient tenement of approximately 4.5 metres

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in width”. (By amendment which was subsequently effected, the

size of the servitude was reduced to 3.5 metres in width).”

In paragraphs 10, 11 and 12 of their declaration, the plaintiffs explain why they

need the right of way. The explanation is given as follows:-

“10 The nearest public road to the dominant tenement is the national

road running from Knysna to Humansdorp . . . “.

11 No other public road is within reasonable reach of the dominant tenement.

12 The dominant tenement is landlocked and the only practical access

from the dominant tenement to the said public road is over the third

defendant’s property and the servient tenement.”

Although the plaintiffs did not allege in their declaration that access was required

to a particular site on their property, it was however clear during trial that the

proposed dwelling would be on the south eastern portion of their property and

that access to that particular site would be required.

According to the plaintiffs, the access route proposed by them would not in any

way interfere with the buildings on the first defendant’s property and would

provide the most practical access from the first defendant’s property across the

third defendant’s property, to their property. Their proposed route for a right of
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way would be along the first defendant’s private road up to the point where it

ends and from that point it would proceed along the servitude road over the third

defendant’s property. The Plaintiffs have already obtained and have registered a

servitude of a right of way over the Catwalk property.

It was the plaintiffs’ case that their proposed route for a right of way would be

most appropriate as inter alia, only approximately thirty metres of road on the

servient tenement would be required to be graded as an extension of the private

road, to the point at which the servitude over the third defendant’s property would

commence. The plaintiffs further submitted that the registration of the right of

way would in no way diminish the first defendant’s own beneficial use and

enjoyment of the servient tenement or the private road on it.

The first defendant denies that the nearest road to the plaintiffs’ property is the

national road running from Knysna to Humansdorp. It avers that there is a public

road to Wittedrift which is within reasonable reach of the plaintiffs’ property.

The first defendant further averred that the construction of a road on the route

proposed by the plaintiffs would involve the destruction of highly sensitive and

protected forest areas and such an activity could not be undertaken without
authorization from the Department of Environment, Culture, Agriculture and Sport
of Western Cape Province. The first defendant accordingly submitted that the
routes proposed by it would provide more practical access to the plaintiffs’
property from the national road than the route proposed by the plaintiffs.
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In its plea the first defendant had initially proposed three alternative routes which

according to it would provide practical access to the plaintiffs’ property. One of

them was however abandoned by the first defendant. Access routes proposed

by the first defendant would come off Wittedrift road and traverse north western

portion of Catwalk property. The entry point to the plaintiffs property would be

high up on north western portion of their property. It should be noted that the

access routes proposed by the first defendant would not traverse its property.

PRELIMINARY OBJECTION

At the commencement of trial the plaintiffs sought to have struck out certain

paragraphs in the first defendant’s plea in so far as they deal with the detrimental

environmental consequences of building a road along the servitude route. The

plaintiffs also sought to have the whole of the summary of Mrs. Di Grant, the

First Defendant’s expert, declared irrelevant and inadmissible.

I ruled that it was inappropriate at that stage to make a ruling on the admissibility

of the evidence as the Court had not been furnished with the summary of Mrs Di

Grant’s evidence. I however left it to the parties to argue its relevance at the end

of the trial.

In this matter both parties had called experts to testify on which of the routes

would provide reasonable and practical access to the plaintiffs’ property.

Engineers were called to give an opinion from the engineering point of view.
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Environmentalists testified on the environmental impact the parties’ proposed

routes would have. Further proposals and suggestions were made during the

course of the proceedings and to a certain extent the environmentalists had an

input in the formulation of further alternative routes proposed by the engineers.

Hence in the process “a Pink route” and “Neck route” were developed.

It is therefore clear to me that both parties had appreciated that the dispute

between them involved the consideration of the common law principles as well as

the relevant environmental legislations. This is so because of the fact that both

the plaintiffs’ property and the Aventura property as well as Catwalk property had

been declared as sensitive coastal areas in terms of regulations promulgated in

terms of Section 21 of the Environment Conservation Act, 73 of 1989. In terms of

these regulations consent for the construction of a road in such an area is

required. The construction of a road would involve the destruction of highly

sensitive and protected coastal forest area. This is what makes the parties’

properties quite unique.

In the circumstances the plaintiffs’ application to strike out should fail and
accordingly I find that the expert evidence of Mrs. Di Grant is relevant and
admissible to the extent that it assisted the engineers in formulating and
developing further alternative access routes.

PLAINTIFFS’ CASE

It is the plaintiffs’ case that a servitude of right of way over the first defendant’s

property would provide access to their property. They contend that their property

is landlocked and the nearest public road to their property is the national road
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running from Knysna to Humansdorp and that there is no other public road within

reasonable reach of the plaintiffs’ property. The only practical access from the

plaintiffs’ property to the said public road is over Catwalk property and first

defendant’s property (Aventura property).

The plaintiffs submit that a general or a specific servitude over Aventura property

would constitute the most practical and reasonable access to their property. The

right of way which the plaintiffs seek to have over the first defendant’s property is

described in Annexure “A” to the Particulars of Claim. Annexure “A” is a copy of

the map indicating properties of the parties and their location in relation to each

other and to the national road.

The plaintiffs’ property is indicated by the letters “A”, “B”, “C” and “D”. The

Aventura property is indicated by letters “D”, “E”, “F”, “G”, “H”, “I”, “J” and “K”.

Catwalk property is on the left of the letters “A”, “D”, “E”, “L” and “M”. The

national road running from Knysna to Humansdorp is marked “N” to “O”.

There is an existing private road on Aventura property (first defendant’s property)

which extends from the national road to within approximately thirty metres of the

north western boundary of the first defendant’s property ending at the point,

marked “P” on the map. (Annexure A).

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Mr Hugh Jackson testified that the plaintiffs’ proposed route for a right of way will

be along the private road to point “P” on Annexure “A” and from there, to the

servitude over the Catwalk property. He further testified that the plaintiffs

secured the registration of a servitude over the Catwalk property in favour of their

property in order to afford it access across first defendant’s property in

anticipation of the first defendant agreeing to grant the plaintiffs’ property a right

of way over the defendant’s property.

Mrs. Cathy Avierinos, the plaintiffs’ environmental expert was of the view that

routes suggested by the parties would have very significant detrimental impact on

the environment as the area in which plaintiffs’ property is located is a protected

forest area. She suggested a further alternative way to provide access to the

plaintiffs’ property and her suggestion was that the plaintiffs could gain vehicular

access to a parking area on the Catwalk property and from which access to the

house would be provided by means of a boardwalk. Concerning the feasibility of

constructing an extension route on the defendant’s property, Mrs Avierinos

testified that all the experts agreed at their meeting that it was possible to

construct the thirty metre portion of road on the defendant’s property in such a

way that it could bypass chalet number 9 and without a need to demolish it.

Mr. Allan Cook, the plaintiffs’ engineer, testified that from the engineering point of

view it was possible to construct the road capable of providing vehicular access

to the plaintiffs’ property though with cost and difficulty. This was due to the fact
  37

that the proposed route would be along a water course and also traverse an

extremely steep terrain to provide access to the plaintiffs’ property. He then

suggested a pink route which would attempt to avoid the water course. Mr Cook

was however of the view that, besides the water course problem, the route

proposed by the plaintiffs would be more appropriate as it accesses the plaintiffs’

property nearer to the desired proposed dwelling position in the south-east

corner of the site and this would reduce the internal route construction.

According to Mr. James Robert Pawson, the plaintiffs’ expert witness (land

surveyor) none of the routes suggested by the first defendant would provide

access to the southern portion of the plaintiffs’ property, being the area most

suited and desirable for purposes of erecting a dwelling. In his opinion the

access routes proposed by the plaintiffs constitute the shortest distance from the

plaintiffs’ property to the nearest public road. Routes proposed by the first

defendant including the “Neck Route” are much longer both in terms of distance

and time. Mr Pawson further testified that access via alternate Route A or Route

B as proposed by the first defendant would require the grant of a right of way for

the use by the plaintiffs’ property of the existing road over Catwalk property which

extends some kilometres to the nearest public road and ends some 300 to 500

meters from the western boundary of the plaintiffs’ property. Routes A and B

would further require the construction and use of a road from the existing road on

Catwalk property to the boundary of the plaintiff’s property and that construction

would be over steep and extremely difficult terrain.

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FIRST AND FOURTH DEFENDANTS’ CASE

It is the defendants’ case that the routes of access proposed by the plaintiffs are

not appropriate from an environmental perspective or feasible from an

engineering point of view. It is their contention that the Court should not grant a

right of way which will not be capable of being exercised, particularly where the

grant of such a right will have detrimental impacts on their right to use and enjoy

their property. According to Mr. Gavin Lloyd, the defendants’ expert land

surveyor, construction of a road within the registered servitude would be

“inappropriate, ill conceived and ecologically irresponsible”. In his opinion the

right of way proposed by the plaintiffs does not provide the most practical access

to the plaintiffs’ property having regard to the topographical, geographical and

ecological features of the properties surrounding their property.

His reason was based on the fact that the construction of the proposed route

would inevitably result in the extensive destruction of natural vegetation and

would also dramatically affect the privacy of occupants of chalet number 9 on the

first defendant’s property as the route would run close to it. In fact according to

him the route proposed by the plaintiffs would be inappropriate as its extension to

the existing road within the Aventura property would require the probable

demolition of chalet number 9 and which would result in the loss of the

accommodation provided by this chalet. In his opinion the proposed road

connection cannot be constructed without demolishing chalet number 9 or

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seriously affecting the immediate environment and indigenous trees surrounding

this chalet. His conclusion was based on the fact that the space between the

chalets, existing parking area and electrical boards is severely limited and

insufficient to allow for a road as indicated by the plaintiffs.

Mr Lloyd was of the opinion that the routes proposed by the first defendant would

offer more appropriate access to the plaintiffs’ property. The first defendant

initially proposed Route A and Route B. According to Mr Lloyd, Route A will be

more appropriate because it is significantly shorter than the route proposed by

the plaintiffs. It is also significantly flatter and easier to build. His views were,

inter alia, based on the fact that the area to be traversed by it, is stable gravel

conglomerates which can easily be graded. The route is also approximately 200

meters shorter than the route proposed by the plaintiffs.

On the appropriateness of Route B, Mr Lloyd testified that it was more preferable

than the route proposed by the plaintiffs, as it would cross a very flat terrain

covered in fynbos for a substantial part of the way. Its disadvantages however

are that it is 20 metres longer than the plaintiffs’ proposed route and that the last

100 meters are relatively steep, having a gradient of about 1 in 5.

Mrs. Di Grant, the first defendant’s expert environmentalist expressed the

opinion that the relevant environmental authorities would be very unlikely to

authorize the construction of a road over the route proposed by the plaintiffs
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given its environmental impact. According to her, routes proposed by the first

defendant are considerably less damaging to the natural environment as they are

much higher up in the catchment and situated on a spur rather than in a valley.

Mr. De Waal, the first defendant’s expert engineer suggested a “Neck Route” to

gain access to the plaintiffs’ preferred site for the erection of a house. He

however conceded that the “neck route” and other routes proposed by the first

defendant would have to traverse a ravine to get to the plaintiffs’ property and

that simply from a square metrage perspective, the pink route would traverse the

least virgin forest as it was the shortest though it will be difficult to construct as it

will run along the water course. He accepted that the use of gabiens would be

more environmentally friendly than constructing the road on stilt.

Mr. Tait testified that the fourth defendant has since bought the Aventura property

from the first defendant and intends developing the property. The development

plans include the erection of a conference centre, two hotels and a restaurant.

The existing security entrance will be moved. These plans will however only go

ahead once the fourth defendant has obtained necessary authorization from the

relevant authorities as required in terms of regulations promulgated in terms of

section 21 of the Environment Conservation Act, 73 of 1989. In his view a right

of way will not present any security problem to the first defendant. He was

however concerned that the grant of a right of way will infringe upon the fourth

defendant’s development plans as the proposed conference centre will be

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located over the existing road. However he conceded that the chalets located

beyond the hotel would require access and the plaintiffs could employ whatever

new route was built to provide such access.

DISCUSSION

The issue to be determined in this matter is whether it is necessary and practical

for the plaintiffs to be granted a right of way over the first defendant’s property for

the purpose of constructing a road so as to provide vehicular access to the

plaintiffs’ property.

This issue will have to be determined in the light of geographical location of the

plaintiffs’ property and at the same time have regard to the conflicting interests of

the parties. It is common cause that the plaintiffs’ property is landlocked and that

it has no direct access to the public road. What plaintiffs request is the vehicular

access over the Aventura property to the boundary of Catwalk property over

which the plaintiffs have already been granted a servitude. The intended

destination of a proposed route will be to the south eastern portion of the

plaintiffs’ property where the plaintiffs intend to build a house. The plaintiffs’

preferred location of the house is flatter and provides the best view site.

The plaintiffs, as owners of the property, have a real right in that property and

unless they have access to their property they will be unable to exercise that

right. At the same time the first and fourth defendants (“the Defendants”) are
  37

entitled to the full ownership of their property and the effect of a right of way

sought by the plaintiff will detach some of dominium from the ownership of their

th
property. (Wille’s Principles of South African Law. 8 ed at 315).

It is against this background that the issues between the parties should be

addressed. However, before considering and deciding on the issues, I consider it

appropriate to canvass certain aspects relating to the legal position of a right of

way of necessity.

The nature and extent of the right of way was extensively dealt with by Nestadt, J

in Lorentz v Melle and Others 1978 (3) SA 1044 (TPD) at 1049B-H:

“(i) A servitude is, of course, a right belonging to one person in the

property of another entitling the former either to exercise some right

or benefit in the property or to prohibit the latter from exercising one

or other of his normal rights of ownership (Wille Principles of South

th
African Law 7 ed at 221). It is an example of a jus in re aliena; it

diminishes an owner’s dominium in a thing.

(ii) If the right is in favour of a particular individual, without reference to

his ownership of land, then one has a personal servitude. Here res

servit personae. This type of servitude may exist over both

movable and immovable property. Normally, it terminates (at the

latest) on the death of the beneficiary (in the case of a natural

  37

person). If, however, the right is constituted in favour of the owner

of another piece of land in his capacity as such, then the servitude

is a praedial or real one. It can only exist over land and is not

transferable apart from the land to which it attaches (Webb v

Beaver Investments (Pty) Ltd and Another 1954 (1) SA 13 (T) at

25). Here the servitude is incidental to and passes with the

ownership of the dominant land, to which it is inseparably attached,

while it burdens the servient land irrespective of who the owner is

(Hahlo and Kahn The Union of South Africa; The Development of

its Laws and Constitutions). In this case res servit rei.

(iii) It is of the essence of a praedial servitude that it burdens the land to

which it relates and that it provides some permanent advantage to

the dominant land (as distinct from serving the personal benefit of

the owner thereof, Hahlo and Kahn (supra at 602).

(iv) The usual manner of establishing a (praedial) servitude is by

agreement in the form a notarial deed between the owners of the

two tenements followed by its registration (seeing that it is a jus in

re aliena) against the title deeds of the servient land, though for the

sake of clarity it is or can be also registered against the title deeds

of the dominant land (Van Vuren and Others v Registrar of Deeds

rd
1907 TS 289 and 295; Hall and Kellaway Servitudes 3 ed at 27).

The mere fact of registration of a notarial deed does not, however,

render the rights of a servitutal character (Hollins v Registrar of

  37

Deeds 1904 TS 603 at 607; Schwedhelm v Hauman 1947 (1) SA

127 (E) at 136; Van der Merwe v Wiese 1948 (4) SA 8 (C) at 26). It

may be that only personal rights were created and that registration

should not have taken place.”

A servitude is created simpliciter and could be altered by the owner of the

servient tenement if he can afford to the owner of the dominant tenement another

route as convenient as the old route (Wynne v Pope 1960 (3) 37 CPD at 39F-G).

When a right of way of necessity is claimed the Court must determine whether

the claimant is entitled to it. In Van Rensburg v Coetzee 1979 (4) SA 655 (A) at

671 (translated version) the Court considered and set out extensively the

circumstances in which a right of way of necessity will be granted and the

following was said:-

“It is sufficient to accept that a claim to a way of necessity arises if a piece

of land is geographically landlocked and has no way out, or if a way out is

in fact available it is, however, inadequate and the position amounts to this

that the owner has no reasonably sufficient access to the public road for

himself and his servants to enable him if he is a farmer, to carry out his

farming operations” (Lentz v Mullin 1921 EDC 268 at 270…”

The way of necessity of his neighbour’s property will be granted if a person who
has no free entrance to his house or land or an exit from his house or land and
provided that he pays a reasonable price for such a way of necessity.
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In determining the piece of land which the way of necessity must traverse, the

Court will be guided by “ter naaster lage en minster schaden” rule which means

that the way of necessity must traverse the adjoining land which lies between the

landlocked and the nearest public road.

However according to the Court in Van Rensburg v Coetzee supra at 672H-673A

the rule is not inflexible as it is “conceivable that the piece of land thereby

indicated as that which the way of necessity must traverse is so impassable that

it provides no practical way out; or on the other hand it is also conceivable that

that piece of land would be so detrimentally affected as a result of particular

circumstances that another plan would rather have to be made. In these cases

the basic rule could probably be departed from and the way of necessity located

over another piece of land. But that does not detract from the maxim which lays

down the manner in which one should proceed in normal cases.”

With this legal background I must now proceed to deal with the defendants’

contentions. The defendants contend that the plaintiffs cannot claim a right of

way at this stage because they have not yet even obtained consent for the

construction of a dwelling on their property.

I have difficulties with the defendants’ contention. As early as November 1997

the defendants were aware that the plaintiffs had intended to develop their land

either by the erection of a dwelling, chalets or such other improvements and in

  37

accordance with applicable town planning scheme. In a letter addressed to the

first defendant on 12 November 1997, the plaintiffs advised that their property

was previously proclaimed as a private nature reserve. In terms of the relevant

town planning scheme as it applied in November 1997, the plaintiffs have a right

to erect at least one dwelling for primary use. Any future plans which the

plaintiffs may have with regard to the use of this property will depend on their

ability to obtain the right of access to their property. The plaintiffs are in my view

therefore entitled to claim a right of way at this stage.

It was also argued by Mr Meyer that a right of way should not be granted in this

matter as that right will not be capable of being exercised. He pointed out that

the grant of a right of way over the defendants’ property will have immediate

detrimental impacts on their right to use and enjoy their property. Mr Meyer

contended that the exercise of a right of way by the plaintiffs would be subject to

obtaining authorisation for the construction of a road for their proposed dwelling

site, over the defendants’ property and up to the national road. The proposed

route is not feasible both from the engineering perspective and from the

environmental point of view and that it was highly unlikely that the plaintiffs would

be able to obtain the necessary authorisation. Accordingly Mr Meyer argued, the

Court should not grant a right that is incapable of being exercised and he

submitted that this principle is applicable to the present matter. In support of his

contention, Mr Meyer relied upon various cases in which it was held that the

Courts will not deal with or pronounce upon abstract or academic points of law.
  37

(See Trustees, Polynton Property v Secretary for Inland Revenue 1970 (2) SA 618 (T);
Sekretaris van Binnelandse Inkomste v Roodt 1973 (4) SA 19(O) at 22; SA Mutual Life
Assurance Society v Anglo-Transvaal Collieries Ltd 1977 (3) SA 642 A at 658; Shoba v
Officer Commanding, Temporary Police Camp, Wagendrift Dam 1995 (4) SA 1 at 14C;
Family Benefit Friendly Society v Commissioner for Inland Revenue 1995 (4) SA 120 T at
125; Munn Publishing (Pvt) Ltd v Zimbabwe Broadcasting Corporation 1995 (4) SA 675
(ZSC) at 680; Contactprops 25 (Pty) Ltd v Executive Council, Province of the Eastern
Cape[2000] 3 All SA 443 (Ck) at 446.)

In my view the answer to the defendants’ contention is to be found in section 19

(1) of the Supreme Court of 59 of 1959. In terms of Section 19 (1) (a) (iii) a

provincial or local division shall “in addition to any power or jurisdiction which may

be vested in it by law, have power in its discretion, and at the instance of any

interested person, to enquire into and determine any existing, future or

contingent right or obligation, notwithstanding that such person cannot claim any

relief consequential upon determination.”

In my opinion the principle that a court may decline to issue a declaratory order

for the purpose of answering a hypothetical, abstract and academic question will

not apply where there is a real and pertinent dispute between the parties (See

Compagnie Interafricaine do Travaux vs SATS and Others 1991(4) SA217(A) at

230 I to 231C) and Freedom of Expression Institute vs President, Ordinary Court

Martial 1999 (2) SA 471 CPD at 485 H-I. In the present case there is a dispute

between the parties on whether or not the plaintiff should be granted a right of

way over the defendants’ property. It is true that the granting of that right to the

plaintiffs will not entitle them to exercise that right. The plaintiffs would still be

required to comply with various environmental legislations in exercising the right

of way as their property is located in an area which has been declared as

  37

sensitive coastal area. That, however, does not mean that the questions which

are presented here are either abstract or academic or hypothetical.

It would seem to me that in terms of Van Rensburg v Coetzee case a claimant

who requires a right of way must show that his land is geographically landlocked,

has no way out and identifies the need of access, will be entitled to a way of

necessity in accordance with “ter naaster lage en minster schaden” principle

(way of necessity must traverse the adjoining land which lies between the

landlocked and the nearest public road).

Thus in terms of this principle, the defendants’ property, because of its close

proximity to the national public road will be able to provide the plaintiffs’ property

with access to the public road. In fact it was the evidence of Mr Gavin Lloyd, the

defendants’ expert that the distance of the access road from the national road to

the defendants’ security control boom at the entrance to their property is about

240 metres.

In my view the owner of an adjoining land who does not wish a way of necessity

to traverse his land will have to show that the land identified to be traversed is so

impassable that it provides no practical way out or that the piece of land so

identified will be detrimentally affected if a way of necessity was to be granted

over his property.

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In this case the defendants are opposing the grant of the right of way on the

ground that the required access to the plaintiffs’ property would pose not only

environmental difficulties but also practical engineering difficulties. It is correct

that, according to Van Rensburg v Coetzee supra at p.672 H for “ter naaster lage

en minster schaden” principle not to apply one has to show that the land which is

sought to be traversed must be so impassable that it provides no practical way

out. In my view impassability of land must be looked at in relation to the

topographical and geographical features of both the servient tenement and the

dominant tenement, for instance if there is a ravine between landlocked and the

adjoining property. Similarly the”ter naaster lage en minster schaden” principle

will not apply where a piece of land to be traversed by a right of way of necessity

will be so detrimentally affected. These are the defences which the owner of the

servient tenement can raise when a right of way over his property is being

claimed. I however, do not think that the environmental and engineering

difficulties are issues to be taken into account in determining whether or not the

identified land will be impassable. In my view one cannot use environmental and

engineering considerations in order to prove the impassability of land.

The defendants have also argued that granting a right of way over their property

will detrimentally affect their property.

There is no doubt that the construction of a right of way over the defendants’

property, Catwalk property as well as on the plaintiffs’ property will cause damage
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to the environment. It is also the defendants’ submission that the grant of a right

of way will have a direct effect in limiting the development plans for their property.

It was their evidence that they intend developing their property by the

construction of two hotels, conference centre and restaurant and these

developments will involve re-routing of internal roads within the resort.

As I have stated earlier on, in deciding on whether or not to grant the right of way

over the defendants’ property one would have to weigh up the parties’ competing

interests and decide on the approach that will be less burdensome upon the

parties. The facts in this matter are that the plaintiffs wish to use the defendants’

existing access route from the public road right up to the point where it ends on

the south western border of their property. From there the plaintiffs seek to

extend a right of way up to a distance of approximately thirty metres where the

servitude route over the Catwalk property commences.

The plaintiffs have obtained a servitude route over Catwalk property as they have

no direct access to their property from the defendants’ property due to the fact

that the land there is too steep. The viable access to the property will be via

Catwalk property.

It is also correct that a certain portion of the defendants’ property will be affected

when the proposed route is constructed. There will be some movements around

the area of chalet number 9 which is located on a northern portion of the

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defendants’ property and that will definitely affect peace and tranquility in that

area. However the entire additional route to be built on the defendants’ property

would only be approximately thirty metres from the point where the defendants’

private road ends.

In balancing the parties’ conflicting interests, one will have to consider the

viability of the routes proposed by defendants as providing alternative access to

the plaintiffs’ property. The defendants’ proposed routes were designed to

provide access to the north western portion of the plaintiffs’ property, being the

closest portion of the plaintiffs’ property to the private servitude road connecting

the Catwalk property to the public road to Wittedrift.

The other two further alternative routes proposed by the defendants during the

course of the trial were “Neck route” and a route along the “cut line”. The latter

route would be along the border of plaintiffs’ property and the Keurbooms River

Forest Reserve.

It is clear that neither route A nor B proposed by the defendants would provide

access to the spot where the plaintiffs intend constructing a dwelling. The

plaintiffs’ preferred site is on the south eastern portion of their property where the

terrain is less steep and provides the best view. To avoid building the route on

the water course, the plaintiffs suggested a “pink route” which was going to be

along the servitude route but would as far as possible avoid the water course.
  37

Access to the plaintiffs’ property via alternate Route A or B or “Neck Route” as

proposed by the defendants would require the grant of a right of way for the use

by the plaintiffs’ property of the existing road over Catwalk property and this

extends some kilometres to the nearest public road and ends some 300 to 500

metres from the western boundary of the plaintiffs’ property. These routes would

further require the construction and use of a road from the existing road on

Catwalk property to the boundary of the plaintiffs’ property and that construction

would be over steep and extremely difficult terrain.

It was however clear during the trial that experts called by the parties were

unable to define with precision a direction which their proposed routes would take

as a full environmental impact assessment had not been conducted of all the

proposed routes. According to Mr Gavin Lloyd, the first defendant’s expert

witness, land surveyors and engineers must be sensitive to the environment in

constructing their designs.

I however do not think that, given the complex nature of the environmental

legislations with which any route proposed by the parties will have to comply, it

will be appropriate for the Court at this stage to decide the issues both on

common law and environmental principles. This is so because the question

concerning the acquisition of a right of way is determined in accordance with the

common law principles and it is the function of the Court to make that
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determination. Should the plaintiffs succeed in acquiring a right of way they are

seeking, then they will have to comply with the necessary environmental

legislation when they want to exercise that right. A totally different body is tasked

by the legislature to deal with issues regarding compliance with the provisions of

the environmental legislation. If the Court were to apply environmental

considerations in determining the issues between the parties, it will be usurping

the powers of the administrative bodies who, by reason of their expertise, are

empowered to exercise those powers.

The relevant legislations are the Environment Conservation Act 73 of 1989

(“ECA”) and the National Environmental Management Act 107 of 1998 (“NEMA”)

and regulations published thereunder. I shall briefly deal with pieces of these

legislations in order to illustrate the point I am trying to make.

Section 21 of the ECA provides as follows:-

“The Minister may by notice in the Gazette identify those activities which in

his opinion may have a substantial detrimental effect on the environment,

whether in general or in respect of certain areas”

and Section 22 provides as follows:-

“(1) No person shall undertake an activity identified in terms of Section

21(1)… except by virtue of a written authorization issued by the Minister or

by a competent authority…”
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In terms of Section 26 the Minister or a competent authority may make the

regulations with regard to any activity identified in terms of Section 21(1).

Acting in terms of Sections 21 and 26 of the ECA, the Minister promulgated

regulations under Government Notice R1182 on 5 September 1997 and

Government Notice R1528 on 27 November 1998. In terms of these notices

“construction or the upgrading of road” are activities in respect of which

environmental consent is required.

Section 50 of the NEMA retained the provisions of Sections 21, 22 and 26

together with the regulations promulgated thereunder. It is clear that a person
who wants to undertake an activity in terms of Sections 22 of the ECA must apply
to a relevant authority for permission to do so.

Section 1 of the NEMA defines “activities” as including “policies, programs, plans

and projects”. In terms of Section 24, the potential impact on the environment of

activities that require authorisation and which may significantly affect the

environment must be considered, investigated and assessed before they are

implemented.

In my view the question whether or not the plaintiffs are entitled to a right of way

which they are seeking will have to be determined in accordance with the

principles of the common law. And it is for this Court to do so. Should the

plaintiffs succeed in obtaining the right which they seek to acquire, then in

exercising that right they will have to respect and comply with legislative

mechanisms regulating the exercise of that right. It is only at that stage that the
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provisions of the ECA and NEMA together with other ancillary regulations will be

triggered. Thus if this Court, in a claim for a right of way, were to apply both the

common law principles and environmental considerations in considering the

claim, the whole environmental legislative framework would be rendered

nugatory. Clearly that would never have been the intention of the legislature to

do so. The legislature has created and authorised various administrative bodies

with necessary expertise on environmental issues to regulate the exercise of the

right. For instance in terms of paragraph 3 of Regulation R1528 of the Outeniqua

Sensitive Coastal Area Regulations, any application for authorisation to

undertake an activity must be submitted to the local authority concerned. In my

opinion I do think that one needs to obtain an authorisation in terms of the ECA

and the NEMA first before instituting a claim for the right of way. At this stage of

the process the claim has no effect on the environment (See Silvermine Valley

Coalition v Sybrand van der Spuy Boerdery 2002 (1) SA 478 (CPD) 490E-G).

Having said that, therefore it means that I have to decide the issues between the

parties in accordance with the common law principles. Thus the common

principle of “ter naaster lage en minster schaden” will apply in this matter as the

plaintiffs’ land is geographically landlocked. The exceptions to the rule which the

Court had in mind in the Van Rensburg v Coetzee case (at 672H) do not apply in

this matter. The public road is not within reasonable reach of the plaintiffs’

property and the only practical access from the plaintiffs’ property (dominant
  37

tenement) to the said public road is over Catwalk’s property and first defendant’s

property.

In the result I find that the plaintiffs are entitled to a right of way over the first

defendant’s property against payment of the amount of compensation which is

still to be determined between the parties.

It was argued by the first defendant that the grant of the right of way will have a

direct effect in limiting the development plans for its property as it will not be able

to route its internal roads within its property. To address the concerns of the first

defendant a general servitude may be grated over the first defendant’s land in

favour of the plaintiffs’ property and the plaintiffs may select a route provided that

they do it civiliter modo. (See Nach Investments (Pty) Ltd v Yaldai Investments

and Others 1987 (2) SA 280(A) at 831C-D, Smith v Mukheiber and Others 2001

(3) SA 591 (SCA) at 596 I-J). It would also seem that according to the Court in

Naudé v Ecoman Investments en Andere 1994 (2) SA 95 (T) at 101E-G a

servitude can be granted over the servient tenement subject to certain

consideration such as subject to the necessary consent being obtained from

authority for the building of the holiday resort.

The defendants have also contended that the routes proposed by the plaintiffs

will provide access from the national road not only to the plaintiffs’ property, but

also Catwalk property. It is correct that the owner of the dominant tenement
  37

cannot transfer the benefit of that servitude to another tenement without the

consent of the owner of the servient tenement. (See Louw v De Villiers 1893 10

SC 324). The plaintiffs will be obliged to exercise the right of way over the

defendants’ property civiliter modo.

The next question to determine is who should bear the costs which were incurred

before the motion proceedings were converted to trial proceedings. In my view

the plaintiffs should pay costs of such proceedings. When the plaintiffs took a

decision to bring these proceedings it should have dawned to them that the

issues raised by the first defendant would give rise to a factual dispute. The first

defendant’s refusal to grant plaintiffs a right of way over its property was based

on the fact that the proposed servitude was impractical from the engineering

perspective and further that there was a new servitude over Portion 10 (the

Catwalk property) which the plaintiffs could use to obtain access to the public

road (see Exhibit “D 121 “). The plaintiffs should have anticipated a dispute of

facts within the meaning of Plascon-Evans Paints vs Van Riebeeck Paints

1984(3) SA 623 (A) at 634 E to 635 C. Similarly in terms of Van Rensburg v

Coetzee supra at 676C a person who wishes to bring a claim for a right of way

would have to proceed by way of action in view of the factual issues which would

probably exist.

THE ORDER
I accordingly make the following order:-
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1. The first and fourth defendants are ordered to take steps to have a right of

way as described in Annexure “A”, registered over their property namely

Farm 509 (Aventura property) in favour of the plaintiffs’ property namely

Portion 36 (a portion of Portion 21) of the farm Hangklip 305, situated in

the municipality of Plettenberg Bay, Administrative District of Knysna,

Province of the Western Cape and in extent 7,5352 hectares, held by

Deed of Transfer Number T54161/1992.

2. The said right of way shall be approximately 3,5 metres in width.

3. The grant of a servitude of right of way shall be subject to the plaintiffs’

compliance with the provisions of the Environment Conservation Act 73 of

1989 and National Environmental Management Act 107 of 1998 relating to

the construction of the road.

4. First and fourth defendants to pay the plaintiffs trial action costs such costs
to include costs of employment of two counsel where two counsel were used.
5. Plaintiffs are ordered to pay the costs of motion proceedings.
6. The question of the reasonable compensation payable by the plaintiffs to
the defendants is to be determined at a later date.

___________

ZONDI, AJ
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