Van Wyk and Another v Helmut (APPEAL 209 of 1994) [1994] NAHC 16 (1 December 1994)

PETRUS FRANCOIS VAN WYK & 1 OTHER vs HELMUT RoTHEL 1994/12/01 Frank J. Servitude - right of way - via ex necessitate - permanent or precarious right - relief claimed pending decision of Roads Board whether to proclaim road in dispute Notice of motion sought perpetual interdict but applicant at hearing sought interim interdict - refused as Roads Board would not determine dispute and applicant had alterna tive remedies and thus not establish exceptional circumstan ces nor that would be remediless without interim interdict - As relief sought would be final in nature and effect and no prejudice to respondent alternative relief apposite - precarious via ex necessitate granted pending decision of Roads Board. CASENO A 209/94 IN THE HIGH COURT OF NAMIBIA In the m a t t er b e t w e en PETRUS FRANCOIS VAN WYK FIRST APPLICANT ADRIAAN JOHANNES VAN WYK SECOND APPLICANT and HELMUT R6THEL RESPONDENT CORAM: FRANK, J. H e a rd on: 1994.11.11 D e l i v e r ed on: 1994.12.01 JUDGMENT FRANK, J.: T h is is a return day of a r u le n i s i. The A p p l i c a n ts a p p l i ed for and o b t a i n ed a r u le n i si c a l l i ng on the R e s p o n d e n ts to show cause w hy the A p p l i c a n ts s h o u ld not be e n t i t l ed to exercise a right of w ay a l o ng a c e r t a in specified r o u te and w hy the Respondent s h o u ld not be o r d e r ed to r e f r a in from h i n d e r i ng or o b s t r u c t i ng the a p p l i c a n ts from u s i ng this r o u t e. F r om the a f f i d a v i ts filed on behalf of the A p p l i c a n ts the f o l l o w i ng a p p e a r s. The two a p p l i c a n ts c o n d u ct c a t t le farming o p e r a t i o ns in p a r t n e r s h i p. For this p u r p o se First Applicant resides on a farm known as Frankenhoff. This farm belongs to second Applicant. To obtain access from this farm to the nearest proclaimed trunk road first Applicant when taking up residence on the farm made use of a proclaimed road i.e. farm road 2101. According to the First Applicant "This road always presented problems and I could only drive from the homestead to town with a four wheel drive vehicle and with extreme care. No other vehicle, especially an ordinary sedan or heavy truck could be used. This road presents a particular problem in transporting cattle to the market. I always had to drive them by foot". Because of the problems with the road an agreement was entered into with a neighbouring farmer (Mr du Plessis) to use a route traversing his (Mr Du Plessis) farm. This continued for approximately three years up to the point where Mr Du Plessis sold his farm to Mr Rothel. When Mr Rothel took occupation Mr Du Plessis notified the first Applicant that he could not longer "honour" this agreement and Mr Rothel also locked the gates giving access to this route thus depriving applicants from the use thereof. According to applicants the proclaimed farm road is currently still in a bad state and "this farm road 2101 is badly maintained and totally inaccessible for my vehicle except a four wheel drive. Even with such a vehicle, it is highly risky and difficult to drive this road.... The only reasonable access that exists between the homestead of Frankenhoff ... and the trunk road 87 is ... over the farm of R e s p o n d e n t ." T he a p p l i c a n ts h a ve to m o ve c a t t le in the o r d i n a ry c o u r se of their farming o p e r a t i o ns and this is d o ne in c a t t le t r u c k s. As to the c o n d i t i on of the p r o c l a i m ed farm r o ad 2 1 01 the A p p l i c a n ts are supported in a f f i d a v i ts of the R o ad S u p e r i n t e n d e nt employed by the M i n i s t ry of T r a n s p o rt for this a r ea as w e ll as a p o l i ce o f f i c er s t a t i o n ed at O k a h a n d ja w ho a t t e m p t ed to d r i ve on this road. In the founding a f f i d a v it First Applicant a l l e g es that he h as "been a d v i s ed to m a ke an a p p l i c a t i on in terms of s e c t i on 1 6 ( 1 ) ( c) of the R o a ds O r d i n a n ce (Ordinance 17 or 1972) to h a ve this road (i.e. the d i s p u t ed route) p r o c l a i m ed for the p u r p o s es of an a c c e ss road to trunk road 8 7 ." T he R e s p o n d e nt and the a f f i d a v i ts filed on b e h a lf of the R e s p o n d e nt d o es not really d i s p u te the fact that the road 2 1 01 is c u r r e n t ly in a bad s t a t e. Mr R o t h el s a ys in this r e g a rd that "The fact that the first A p p l i c a nt a l l e g es that this road is p o o r ly m a i n t a i n ed is, I submit, no e x c u se for not using it." Mr Du Plessis states "I am aware of the fact that the p r o c l a i m ed road, k n o wn as road number 2101, is p r e s e n t ly in a b ad c o n d i t i o n. However, that is no r e a s on w hy the road should not be used. It falls w i t h in my k n o w l e d ge that a farmer is e n t i t l ed to u se a p r o c l a i m ed road and that if it is not m a i n t a i n e d, then the farmer can enter into an a g r e e m e nt w i th the State, in respect of which the State would pay- one half of the repair of the road and the farmer the other half." Mr Risser another deponent of an affidavit on behalf of the Respondents state the following: "Road 2101 was the original road from Okahandja to Windhoek and even though it has over the years not been properly maintained, I am also aware of the fact that the Applicants have, at their own expense, some years ago, repaired that road so that they were able to use it for the transportation of their livestock. I am aware of the fact that a road such as road 2101, as it is proclaimed, can be maintained by sharing the costs of the maintenance with the State". Nowhere is the statement that cattle trucks cannot currently use road 2101 and that only four wheel drive vehicles can use this road disputed. The only other issue raised in the answering affidavits is that first applicant did not exercise his rights of way "civiliter modo" (to use this expression somewhat out of context) which was disputed by him in his replying affidavit. The law with regard to a way of necessity is succinctly spelt out in Maasdorp's Institutes of South African Law; vol 11, The Law of Property, 9th ed. pp. 140-141 where the following is stated: "Whether a right of way ex necessitate arises from the necessity or from the judgment of the court which decrees it, is of no practical importance, for the right to claim the servitude is based upon the necessity. When the owner of a farm has no access to a public road he is entitled to demand a way of necessity from the owner of the land which lies between his farm and the nearest public road. It cannot be claimed on the ground of convenience alone, but it may be granted if the only alternative route is so inconvenient as to be virtually impracticable. A way of necessity (via necessitate or noodweg) can be acquired by the owner of property over adjoining land when he has no other reasonable means of reaching a public road. It may be either a permanent way to enable access to be gained to a public road or a road to be used only as the necessity arises, e.g. during ploughing or harvesting. A way of necessity can be claimed from a neighbouring owner as of right when occasion demands, but the claim is limited to the bare necessities of the case. For a permanent right compensation must be paid, but not for a precarious permission for occasional use. A way of necessity can be obtained by grant, prescription or order of court. The onus of proving the necessity in any claim for a way of necessity must be discharged by the claimant. He must prove that he has no reasonable access to a public road, or if he be a farmer, that he has no such access to his land as will enable him to carry our normal farming operations. A way of necessity cannot be claimed by an owner who has, through his own act, cut his land off from access to a public road. It must take the most convenient and direct route to the nearest public road and the compensation to be paid for it must be adequate. A person is not entitled to claim the nearest outlet from his ground merely because he has already a less convenient road, but o c c a s i o ns m ay arise w h e re the only a v a i l a b le r o u te is so d i f f i c u lt and inconvenient as to be v i r t u a l ly impracticable, or q u i te i m p r a c t i c a b le for c e r t a in n e c e s s a ry v e h i c l e s, and then a r o ad ex n e c e s s i t a te m ay be granted. That it is m e r e ly r e a s o n a b le that he should be g r a n t ed a right of way, is not a factor upon w h i ch the g r a nt of any s u ch road should be based." T he first q u e s t i on that arises is w h e t h er the First A p p l i c a nt w ho is m e r e ly the occupier of the farm F r a n k e n h o ff and not its o w n er had the right to a p p ly for a v ia n e c e s s i t a t e. Of course if second a p p l i c a nt o b t a i n ed s u ch a right the first occupant w o u ld be e n t i t l ed to u se it but this w o u ld then be on the b a s is that it w as e s t a b l i s h ed by the s e c o nd a p p l i c a n t. N e i t h er c o u n s el a d d r e s s ed me on this a s p e ct and this w as p r o b a b ly as it w o u ld m a ke no d i f f e r e n ce to the R e s p o n d e nt or to the costs of this a p p l i c a t i o n. A l t h o u gh I am p r i ma facie of the v i ew that First A p p l i c a nt c a n n ot s e ek the relief as an o c c u p i er I w i ll a s s u me for the p u r p o se of this judgment that he can as the p o i nt w as not t a k en by or on b e h a lf of the R e s p o n d e n ts and n or w i ll it m a ke any d i f f e r e n ce in p r a c t i se in this a p p l i c a t i on as to c o s ts or to the u se of the road s h o u ld it be g r a n t e d. T he n e xt q u e s t i on to be c o n s i d e r ed is w h e t h er the A p p l i c a n ts are not p r e v e n t ed from claiming the relief s o u g ht as they h a ve t h r o u gh their own acts cut t h e m s e l v es off from a c c e ss to trunk road 87 by not m a i n t a i n i ng r o ad 2 1 0 1. It is c l e ar from w h at is s t a t ed by the d e p o n e n ts Du P l e s s is a nd R i s s er that the S t a te h a ve a role in this regard. W h at e x a c t ly the r o le of the State is w as not e x p l a i n e d. If, as Mr du Plessis stated, the agreement of the State had to be obtained it is improbable that it would be forthcoming in the present matter. This is so because the Road Superintendent stated that in his view road 2101 had to be deproclaimed as the costs of getting it into shape would be prohibitive. The State would thus rather have applied to deproclaim the road in terms of Ordinance 17 or 1972 than to incur expenses to make it usable. Here it must also be borne in mind that the road even where it was used by First Applicant was in such a state that cattle could only be moved on the hoof as cattle trucks could not traverse it. It was thus even then "quite impracticable for certain necessary vehicles." I am thus of the view that the applicants did not through their own acts cut themselves off from access to trunk road 87. Mr Coleman who appeared for the Applicants conceded that the Applicants were not entitled to a permanent interdict and submitted that the Applicants were entitled to an interim interdict pending the decision of Roads Board as to whether the road under dispute should be declared a proclaimed road in terms of Ordinance 17 of 1972. According to the Applicants the hearing of the Roads Board should take place sometime during January 1995. Mr Coetzee who appeared for the Respondent took issue with this and submitted that as the Roads Board would not determine the dispute currently before the Court an interim interdict was not available to Applicants and further submitted that as relief now sought was not contained in the Rule Nisi to which Respondent reacted the Applicants cannot now, as it were change track, and ask for this as this would prejudice Respondent who never addressed his opposition on this basis because of the way the Rule Nisi was phrased. In Airoadexpress v LRTB, Durban 1986(2) SA 662 (A) the Court granted an interim interdict pending the result of an appeal to the National Transport Commission (NTC) in respect of the refusal to grant permits by the Local Road Transportation Board (LRTB). In his dissenting judgment Van Heerden JA refers to the classic definition of an interim interdict at 681 D - E: "According to Van der Linde Institutes 2.1.4.7, an applicant for an interdict who is unable to prove a clear right may obtain interim relief in order to enable him to establish his right ' in een vollediger Regtsgeding.' The author therefor envisages a later and final determination of the existence of the right in question. Hence, as is stated in Joubert the law of South Africa vol 11 at 297, an interim interdict does not involve a final determination of the rights of the parties and does not affect such determination. In short, an interim interdict serves to adjust the Applicant's interests until the merits of the matter are finally resolved." Grosskopf J. A. in his judgment takes issue with the strict interpretation of Van Heerden J. A. and is of the view that the classical definition was not limited to the extent set out above but that the "... Court's powers in Dutch practise to prevent injustice by the issue of orders of mandament poenaal seemed to have been extensive, and it does not seem that the Court would have been prevented in law from acting in a case like the present." The judgment of Kotze J. A. with which Joubert, J. A. concurred based the granting of the order on the Court's inherent jurisdiction to avoid an injustice. As set out at 676 C their decision is "... based on the existence of a 'general power' or, put differently, an inherent jurisdiction to grant pendente lite relief to avoid injustice and hardship. An inherent power of this kind is a salutary power which should be jealousy preserved and even extended where exceptional circumstances are present and where, but for the exercise of such power, a litigant would be remediless, as is the case here." In my view the Airoadexpress Case, is distinguishable from the present matter. In the Airoadexpress case the NTC would at least had to decide whether the permits refused by the LRTB had to be granted, and even through this could be decided on different evidence as an appeal to the NTC could amount to a rehearing, the dispute still revolved around the issuing of a specific type of permit under a specific Act. In the present matter the Roads Board must act in terms of an Ordinance which lays down it's own procedure and requirements and does not involve any decision on the applicants right of way ex necessitate. If a road is proclaimed it will put an end to the present dispute as the Applicants will then be able to use that road created statutorily and the Applicants will not need to pursue their rights under the common law. The proclamation of the road will thus make the resolution of the current dispute unnecessary but will in no way resolve it. In the Airoadexpress case the decision on appeal to the NTC would have resolved the dispute. Conversely, if the Roads Board decide not to proclaim the road the dispute as to the right of way will still exist. Furthermore, the Applicants had alternative remedies. At least second applicant could have sought a perpetual right of way ex necessitate by way of summons and then have applied for an interim order pending the action. A precarious via ex necessitate was another option. In the present application there are thus no "exceptional circumstances" which would leave applicants "remediless" if an interim interdict is not granted. The fact that Mr Coleman submitted that an interim interdict pending the decision of the Roads Board be granted raised two questions in my view. The first was the one already dealt with above and which was the case argued by Mr Coleman. The second one was whether this would create a precarious via ex necessitate which although a final interdict would be of limited duration. This second question was not argued by counsel who assumed because of the use of words such as a "temporary" and "pending" that the legal animal involved was an interim interdict. This assumption was wrong. As was pointed out by van Heerden J. A. in the Airoadexpress case, supra at 681 F: "... a temporary injunction does not necessarily constitute interim relief . . . : if an applicant seeks an interdict which is to be operative for a fbced or determinable period, it may still be final in its nature and effect:" Examples of the type of injunctions referred to by Van Heerden J. A. are found in the case law. In Zuurbekom Ltd v Union Corporation 1947(1) SA 514 (A) a final interdict for a period of eight years was granted to a person with prospecting rights over certain property. In Fourie v Uys 1957(2) SA 124 (C) an interdict was sought to prevent the ploughing of land prior to a specified date as applicant had grazing rights on that land until the specified date. Herbstein J summed up the nature of the relief as follows: "Here, however, the applicant sought an interdict which, though it was to be operative only for a fixed time, was final in it's nature and effect". In Cape Tex Engineering Works (Pty) Ltd. v S. A. B. Lines (Pty) Ltd. 1968(2) SA 528 (C) an interdict pending payment of an amount was held to be a final one. The fact that the interdict would come to an end upon payment of the amount due did not render it any less final because that was inherent in the nature of the right conferred by the lien. (See Tex Engineering case, supra at 530 A ). As pointed out earlier in this judgment there is no real dispute on the facts that road 2101 is presently in such a state as to be impracticable to use for farming purposes. It is also not really in dispute that the only practical road presently available to the Applicants would be the road and route which forms the subject matter of this application. On these facts the Applicants have made out a case for a precarious via ex necessitate i.e. a final interdict for a limited period. What must still be determined however is the length for which this right of way is to endure. As is apparent from the cases referred to above this interdict must be for a "fixed or determinable period" taken the specific circumstances prevailing in this application. The right can only endure until access can be gained via another route. In the present application this can only be until the repair of road 2101 or the decision of the Roads Board. As no perpetual interdict is sought it cannot be pending the finalisation of such claim. Applicant elected to go this route and he cannot complain if the matter is adjudicated on this basis. No facts were given as to the time involved to upgrade road 2101 and if the Roads Board decide not to proclaim the road under dispute applicants will only have themselves to blame for acting over-hasty and without due consideration of the alternative remedies available to them. In their founding affidavit Applicants only refer to the fact that they have been advised to apply for proclamation. This drew no comment from the affidavits filed on behalf of the Respondents save that the application to have the road proclaimed would be opposed. From the replying affidavit it is clear that the application had been launched and the Roads Board will probably deal with the application during January 1995. Furthermore as the Road Superintendent of the relevant area is of the view that road 2101 should have been de-proclaimed long ago it is highly likely that the question of the proclamation of the road will be dealt with earlier than any final decision involving the rehabilitation of road 2101. The final matter to be considered is whether the applicants can obtain a final precarious via ex necessitate where the Rule Nisi issued contemplated a perpetual via ex necessitate. As far back as Allan v van der Merwe 1942 WLD 3 9 at 47 it was held that a party was entitled "to argue any legal point which arose from the recited facts". In addition to this alternative relief may be claimed whether this was expressly stated or not (See Johannesburg City Council v Bruma Thirty-two (Pty) Ltd. 1984(4) SA 87 (T) at 93 F) . This alternative relief "is of such effect that every right to which plaintiff may in any way be entitled upon the allegations in his claim, is thereby considered to be included in the prayer (See Johannesburg City Council case, supra at 92 I) . The same principle applies to motion proceedings (See Hirschowitz v Hirschowitz 1965(3) SA 407 (W) and Johannesburg City Council case, supra at 93 E - F ). Where a Respondent could not have been aware of the fact that certain relief would be apposite and as a result thereof did not deal with certain matters then such relief cannot be granted as this will prejudice the Respondent. In this regard it would probably be more correct to say that the relief sought cannot be claimed as "alternative relief" as no reasonable person would have considered this relief to have been "included in the prayers" or in the case of a Rule N i si in the rule (See S c h i e b l er v K i ss 1985(3) SA 489 (SWA) at 494 I - 495 D ). In my o p i n i on the granting of a p r e c a r i o us v ia ex n e c e s s i t a te d o es q u a l i fy u n d er "alternative r e l i e f" in the p r e s e nt m a t t e r. The a p p l i c a t i on w as b a s ed on a v ia ex n e c e s s i t a t e. T h e se v i a 's are either p e r m a n e nt or p r e c a r i o u s. R e s p o n d e n t 's k n ew that the current r o ad w as i m p r a c t i c a b le for farming p u r p o s es and that an a l t e r n a t i ve r o u te had to be found albeit t e m p o r a r i l y. T he only a l t e r n a t i ve route w as the one forming the subject m a t t er of this d i s p u t e. The a p p l i c a t i on to the R o a ds B o a rd w as also a d u m b r a t ed in the founding a f f i d a v i ts t o g e t h er w i th the fact that the R o ad S u p e r i n t e n d e nt testified that r o ad 2 1 01 "was s u p p o s ed to h a ve b e en d e p r o c l a i m e d" . T h us all the g r o u n d w o rk for a p r e c a r i o us v ia ex n e c e s s i t a te w as laid in the founding p a p e rs and this relief w as not so far r e m o v ed from the o r i g i n al relief sought (both w i th r e g a rd to the facts and the law) that is can be said that the R e s p o n d e nt c o u ld n e v er h a ve c o n t e m p l a t ed it and thus w o u ld be p r e j u d i c ed if it is granted. As far as the costs involved in this a p p l i c a t i on is c o n c e r n ed I do not intend m a k i ng any o r d e r. C o u n s el for A p p l i c a n ts c o n c e d ed that they w e re not e n t i t l ed to h a ve the R u le N i si confirmed as it stood. T he a l t e r n a t i ve r e m e dy sought by the A p p l i c a n ts w e re also not g r a n t e d. T he r e l i ef finally g r a n t ed w as a a result of the q u e s t i on of a p r e c a r i o us v ia n e c e s s i t a te b e i ng r a i s ed by the C o u rt a nd not the p a r t i e s. T he m a in relief c l a i m ed by A p p l i c a n ts w as thus < successfully resisted by Respondent and had the matter been dealt with only on the basis of what counsel intended arguing as was apparant from their Heads of Argument the rule would have been discharged. In the result the following order is made: (1) Respondent is ordered to allow Applicants to exercise a right of way along route x - xl as indicated on the map PW 2 annexed to First Applicant's affidavit until a decision is made by the Roads Board with regard to the proclamation of a road pursuant to an application launched in this regard by First Applicant dated 6 October 1994. (2) Paragraphs 2.2, 2.3 of the Rule Nisi are confirmed pending the decision of the Roads Board.