THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT
Case No 411/09

In the matter between:

ETHEKWINI MUNCIPALITY
Appellant

and

R E BROOKS
First Respondent
L A MINDRY and 14 OTHERS
Second to Fifteenth Respondents

Neutral citation:
Ethekwini Municipality v Brooks (411/09) [2010]
ZASCA 74 (27 May 2010)

Coram:
MPATI P, NAVSA, VAN HEERDEN and
MHLANTLA JJA and GRIESEL AJA

Heard:
14 May 2010

Delivered:
27 May 2010

Summary:
Servitude of right of way – whether such a ‘public
street’, as contemplated in s 1 of Ordinance 25 of 1974
(Natal).

ORDER

On appeal from: KwaZulu-Natal High Court (Durban) (Choudree AJ
sitting as court of first instance):
The appeal is dismissed with costs.

JUDGMENT

GRIESEL AJA (MPATI P, NAVSA, VAN HEERDEN and
MHLANTLA JJA concurring):
[1] The issue for determination in this appeal is whether a servitude
of right of way over the first respondent’s land is to be classified as a
‘public street’ as defined in s 1 of the Local Authorities (Natal)
Ordinance 25 of 1974 (‘the Ordinance’). (For convenience I refer to the
appellant as ‘the municipality’ and to the first respondent as ‘Mrs
Brooks’.)1
[2] Mrs Brooks launched an application in the KZN High Court,
Durban against the municipality (as first respondent in the court below),
seeking, inter alia, an order declaring that the servitude of right of way
over her property does not create a public street as defined in the Ordi-
nance. In addition, she also sought certain interdictory relief, prohibiting
the municipality from treating, in any manner or form, that portion of her

1 The second to fifteenth respondents, who are the owners of neighbouring properties, abided the
decision of the high court and took no part in the appeal to this court.

property which is subject to the servitude as a public road; and pro-
hibiting and interdicting the municipality from undertaking or continuing
any road works on that portion of her property which is subject to the
servitude, ‘without first complying with the provisions relating to private
streets in the Local Authorities Ordinance, No. 25 of 1974 and/or the
Durban Extended Powers Consolidated Ordinance, No. 18 of 1976 or
taking steps in terms of those laws to declare Nyala Drive a public road’.
[3] The municipality opposed the application and, in its answering
affidavit, adopted the attitude that Nyala Drive is a public street as
defined in the Ordinance. In the result, so it contended, the municipality
is ‘obliged to fulfil the obligations contemplated by s 209 of the
Ordinance for the public benefit and, in particular, to ensure that the road
is kept in good order and repair’.
[4] The high court rejected the municipality’s contentions and
granted an order in favour of Mrs Brooks, hence this appeal, which is
before us with leave granted by the court below.
A public street
[5] The answer to the dispute between the parties must be sought in
the definition of ‘public street’ as defined in s 1 of the Ordinance,
namely, as ‘any street which –
(a)
has been established by a local authority or other competent authority as a
public street;
(b)
has been taken over by or vested in a local authority as a public street in
terms of any law;
(c)
the public has acquired the right to use; or

(d)
which is shown on a general plan or diagram of any private township situate
in the area of a local authority filed in the Deeds Registry or the Surveyor-
General’s Office and to which the owners of erven or lots in such township
have a common right of use.’
[6] A ‘private street’, on the other hand, is defined, in the same
section, as ‘any street which is not a public street’.
[7] In support of its contention that Nyala Drive is a public street, the
municipality relied mainly on para (c); alternatively paras (b) and (d) of
the definition. These requirements will accordingly be considered con-
secutively in the sequence adopted by the municipality, after a brief
examination of the relevant factual background.
Factual background
[8] In 1993 Mrs Brooks took transfer of the property described as:
‘Remainder of Lot 183 Drummond, situate in the Drummond Health Committee
Area and in the Port Natal-Ebhodwe Joint Services Board Area, Administrative
District of Natal; in extent 3,7497 (Three Comma Seven Four Nine Seven) Hectares.’
[9] The property originally formed part of subdivision B of what was
then infelicitously called ‘Farm Kafirdrift No 906’ (later renamed as
‘Farm Drift No 906’). It is situated in a rural area, near the Valley of a
Thousand Hills. Certain further subdivisions, numbered 2 to 10 (subse-
quently renumbered as erven 175 to 183), were surveyed over sub-
division B in 1947. At the same time, a servitude of right of way 30 feet
(9,14 metres) wide was surveyed over the farm. The servitude was
created in order to provide access by means of a road to the newly

created land-locked subdivisions, which would otherwise have no road
access. Suitable endorsements reflecting the servitude were entered upon
the title deeds of the relevant subdivisions. A similar endorsement also
appears in Mrs Brooks’ title deed, recording that her property is subject
to a servitude of right of way as indicated on a Surveyor-General’s
diagram ‘in favour of the Remainder of B of the Farm Kafirdrift’; in
other words, in favour of the other subdivisions lying to the north and the
west of her property, which subdivisions later came to be described as
erven 175 to 182.2
[10] The first subdivision to be registered (in 1960) was subdivision
10, later described as Lot 183, of which Mrs Brooks’ property forms the
remainder. Later, a road known as Nyala Drive was created within the
area of the servitude. The road is untarred and extends over a distance of
just over one kilometre, allowing access to the various subdivisions. A
sign indicating that the road is a cul-de-sac has been placed at the
entrance of Nyala Drive and was still there when these proceedings
commenced, as appears from one of the photographs on record. The road
commences off Thousand Hills Drive, runs in a northerly direction
across Mrs Brooks’ property for a short distance, before turning in a
westerly direction at a ninety degree bend on the north-eastern corner of
her property and continuing from there in a straight line to the end of the
cul-de-sac.

2 Mrs Brooks’ property is, in addition, also subject to a road servitude in favour of the Drummond
Health Committee which cuts across the south-eastern corner of the property. This servitude, however,
is unrelated to the present dispute and does not concern us in this appeal.

[11] A dispute arose between the municipality, on the one hand, and
the owners of several of the properties abutting upon Nyala Drive, on the
other hand, as to the party or parties liable to maintain that road. Main-
tenance was originally undertaken by the Drummond Health Committee,
the predecessor in title of the municipality. Thus, on 24 July 2003 Mr
Hobson, Executive Director: Engineering Services of the Outer West
area of the municipality told a meeting of owners of certain properties
serviced by Nyala Drive that he considered the road to be a right of way
servitude and not a public road. He informed the meeting that the
municipality proposed to undertake certain modifications to the recently
installed drains and that it would thereafter arrange for the road to be
graded. The maintenance of the road would thereafter be the obligation
of the various landowners.
[12] In a similar vein, Mr D B Thomas, Deputy Head: Roads
Provision, wrote to one of the other owners in Nyala Drive on 27
September 2004:
‘Nyala Road, as it stands, is a right-of-way servitude in favour of the property
owners and not a public road. In view of the afore-mentioned the maintenance of the
road will remain the responsibility of residents.’
[13] On 5 October 2004, in a letter addressed to Mrs Brooks, Mr S
Chetty, Manager: Engineering Services in the Roads Provision Depart-
ment of the municipality, reiterated that Nyala Drive was ‘a right-of-way
servitude in favour of the property owners and not a public road’. In the
result, so it was stated, ‘the maintenance of the road will remain the
responsibility of the residents’.

[14] However, after receiving a petition, dated 18 October 2004,
signed by 14 of the 16 owners of properties abutting Nyala Drive,
however, the municipality reconsidered the matter and appears to have
changed its stance. During April 2005 it accordingly informed Mrs
Brooks that, on the advice of the Surveyor-General and its own legal
department, it would henceforth be treating Nyala Drive as a public road
and would assume responsibility for its maintenance.
[15] Matters came to a head a few months later, during November
2005, when the municipality commenced extensive road and
construction works on Nyala Drive on a portion of the property of Mrs
Brooks. This conduct precipitated the urgent application that forms the
basis of the present appeal.
[16] Against this background, I now to turn to deal with the individual
requirements on which the municipality relied in support of its
contention that Nyala Drive is a public street.
The right of the public to use the road
[17] In considering whether or not the public had acquired a right to
use Nyala Drive, it may be noted that, at common law, there were two
kinds of roads which members of the public were entitled to use: the one
was the via publica, coming into existence by proclamation as a public
road by the competent authority. This category, which coincides with
para (a) of the definition of ‘public street’, does not concern us as it is
common cause that there has been no proclamation in respect of Nyala
Drive. The other category of public road is a so-called via vicinalis or

‘neighbours’ road’ (Afrikaans: buurweg). In Malherbe v Van Rensburg
& ’n ander3 the court (Van Winsen J, Corbett J concurring) dealt with
the nature and origin of a ‘buurweg’ and held as follows:
‘’n Saaklike reg van weg kan, onder andere, deur verjaring bekom word mits die
aanspraakmaker op so ’n reg bewyse kan lewer dat hy en sy voorgangers-in-titel ten
opsigte van praedium in wie se guns die reg opgeëis word, gebruik gemaak het vir ’n
tydperk van 30 jaar van ’n bepaalde weg, en dat die gebruik openlik, vreedsaam en
sonder instemming van die eienaar van die grond waaroor die weg loop, geskied het.
In teenstelling hiermee kan die publiek geen regte tot ’n weg by wyse van verjaring
verwerf nie. Sodanige verwerwing kan slegs uit hoofde van gebruik sedert ’n
onheuglike tyd geskied. Deur sodanige gebruik word ’n buurweg geskep. Daar rus op
die persoon wat beweer dat so ’n buurweg bestaan die bewyslas om aan te toon dat
die publiek in die algemeen, sonder beletsel van die eienaar van die grond waaroor
die weg loop, vir so ’n geruime tydperk van die weg gebruik gemaak het dat die
oorsprong van die gebruik nie bepaal kan word nie. Die reg deur so ’n gebruik
geskep het sy oorsprong in “ancient custom” of vetustas. Weens die verswarende
aard van regte op hierdie wyse deur die publiek oor ’n ander se grond verkry word
duidelike bewyse van sodanige gebruik geverg.’4

(My emphasis).
[18] When it comes to a servitude of right of way, it is important to
bear in mind that it enures not only to the servitude holder but, as it was
put by Voet,5 also to ‘the members of his household, his guests, his table
companions, hirelings and medical attendants along with him.’ This
passage in Voet does not purport to create a watertight numerus clausus

3 1970 (4) SA 78 (C).
4 At 80A–F (other case references omitted).
5 Commentarius 8 3 1.

of parties entitled to make use of a servitude road. Thus, Maasdorp6
paraphrased the above passage as follows:
‘(S)ervitudes . . . may be made use of, not only by the owner of the dominant tene-
ment, but by anyone who has a legal right to be upon the dominant tenement, such as
servants, guests, visitors, labourers, etc.’

(My emphasis.)
[19] This brings me to the evidence adduced on behalf of the
municipality in support of its contention that the public has acquired the
right to use Nyala Drive:
(a)
Mr Alan Neil Mitchell, a practising land surveyor, has been
employed by the municipality (and its predecessor) since 1985 and he is
presently Manager: Land Surveying in the Surveying and Land
Information Department of the Engineering Unit of the municipality. He
said inter alia the following with regard to Nyala Road:
‘Access to members of the public was not at any stage, as far as I am aware and as
far as the records of the respondent reveal, ever barred.
Members of the public were always allowed to use the road which was created in the
area of the servitude which ultimately acquired the status of a public street.’
(b)
Ms Dorothy Grace Canny, who was a secretary at the Drummond
Health Committee between the years 1971 and 1979, stated:

6 A F S Maasdorp Institutes of Cape Law Vol II (1918) p 202.

‘Nyala Drive was already in existence when I joined the Drummond Health
Committee. As far as I am aware, it was always regarded as a road to which
members of the public had access and which the public utilised.’
(c)
Ms Frith Myers joined the Drummond Health Committee as
Town Secretary on 3 February 1993 and remained in that position until
the Drummond Health Committee was eventually incorporated into the
Outer West area of the municipality, where she is presently still
employed. She said:
‘As far as I am aware, Nyala Drive was always regarded as a public road to which
the public had access and which they utilised.’
(d)
Mr Richard William Birkett, the Deputy Surveyor General,
Pietermaritzburg, stated that ‘. . . our offices share the views expressed in
the affidavit of Mitchell to the effect that Nyala Drive has acquired the
status of a public street’. He added:
‘Nyala Drive was accessible to the public ever since the creation of the first
subdivisions serviced by it; members of the public were never barred access to it; . . .
certain of the owners of such subdivisions appear to be engaging in commercial
enterprises such as nurseries which will attract members of the public.’
In the circumstances, according to Mr Birkett, it is ‘inconceivable that
Nyala Drive could still be classified as a private road’.
[20] Mrs Brooks, in her replying affidavit, denied that Nyala Drive
had been regarded by the municipality and its predecessor as a public
street. Her attitude is summarised as follows:

‘I remain the owner of my property and the only people who may legitimately use it
are those in whose favour the right of way servitude was created and this is a finite
and limited class of people.’
She added that, when she purchased her property (in 1992), there was a
sign at the entrance from Thousand Hills Drive to the following effect:
‘Residents’ Access Only’. Her evidence in this regard is supported by
affidavits from two current owners and one former owner in the area,
who similarly recall that members of the public did not enjoy un-
restricted access to Nyala Drive, nor did they routinely use it as a public
road. Indeed, as pointed out by one of these witnesses, ‘. . . members of
the public, unless they were visiting property owners in the area, had no
need and could not access any public place if they travelled down the
road’.
[21] It is significant to note that, although Mr Mitchell filed a supple-
mentary affidavit in response to some of the allegations contained in the
replying affidavit of Mrs Brooks, he did not deal with these aspects of
her evidence, which are thus uncontradicted.
[22] Apart from the above views expressed in vague and general
terms on behalf of the municipality regarding the public nature of Nyala
Drive, there had, of course, also been the contrary views expressed by
senior employees of the municipality, as mentioned earlier.7 Those views
only changed after the petition of 18 October 2004, in which the various
owners urged the municipality to regard Nyala Drive as a public street.
(This seems to confirm that all owners of properties in Nyala Drive at

7 Paras 11–13 above.

that stage still regarded it as a private street.) Thus, far from being
generally regarded as a public street, exactly the opposite seems to have
been the position – at least until 2005, when the municipality had a
change of heart.
[23] Having regard to the legal test as outlined above and bearing in
mind the requirement for clear proof (‘duidelike bewyse’) in support of
the right relied on, I am of the view that the evidence adduced on behalf
of the municipality falls far short of establishing a right on the part of the
general public to use the road in question. At best for the municipality,
the evidence establishes that some members of the public, or persons
other than the owners of subdivisions, may, over the years, have used the
road from time to time without let or hindrance. However, the evidence
fails to establish whether or not those members of the public who used
Nyala Drive over the years fell into the extended category of lawful
users of the servitude of right of way described by Voet in the passage
referred to above. It follows, therefore, that the municipality has failed to
prove that the public has acquired a right to use the portion of Nyala
Drive that forms part of the property of Mrs Brooks.
Has the road been taken over by or vested in the municipality?
[24] The first alternative argument advanced by the municipality
relies on para (b) of the definition, based on an allegation that Nyala
Drive has been taken over by or vests in the municipality. Section 220 of
the Ordinance deals with this situation and reads as follows:
‘(1)
Whenever any private street referred to in section 218 or section 219 has
been formed, hardened, paved, kerbed and guttered to the satisfaction of the council,

then on the application in writing of the owner of the land, or, as the case may be, of
the owners representing more than one-half of the value of houses and land abutting
upon such street, the council shall take over such street as a public street.
(2)
Notwithstanding anything hereinbefore contained, the council may also with
the consent in writing of the owners representing more than one-half of the value of
houses and land abutting upon any private street, take over such street as a public
street.’
[25] In support of this leg of the argument, the municipality relied on
the petition referred to above,8 which set out the history of the road and
proposed that Nyala Drive be recognised as a ‘public road’ for purposes
of maintenance. (Mrs Brooks refused to sign the letter, while another
owner could not be located.) The municipality regarded the petition as an
application by owners representing more than one-half of the value of
houses and land abutting the private street in question to take over such
street as a public street. It therefore claims to have acceded to the
application and to have ‘taken over’ Nyala Drive as a public street.
[26] Leaving aside the question whether or not Nyala Drive is the
kind of private street referred to in sections 218 and 219 (which is open
to considerable doubt), there is simply no evidence of any decision
having been taken by the council to take over that street. Had such a
decision legitimately been taken, one would have expected a clear
recordal thereof. Thereafter, the next step would have been to regularise
the position in the offices where transactions of this nature are recorded,

8 Para 14 above.

namely the Registrar of Deeds and the Surveyor-General. In this regard,
s 221 of the Ordinance provides as follows:
‘Whenever the council shall take over any private street as a public street as
hereinbefore provided, such street shall vest in the council, but it shall not be
necessary for such street to be transferred to the council, the Registrar of Deeds and
the Surveyor-General being hereby authorised to make such entries in the records of
their respective offices as may be necessary to give effect to the provisions of this
section; provided that they or either of them may require the production of such
proof or other information as they or he may deem necessary, including any plan or
plans; and provided further that the title deeds of any property concerned shall be
produced to the Registrar of Deeds whenever they are available, for endorsement in
terms of such vesting aforesaid.’
No evidence has been adduced of any entries made in the records of
either of those offices to give effect to the purported taking over, nor
have the title deeds of the properties concerned been produced to the
Registrar of Deeds for endorsement.
[27] Bearing in mind that ownership in public streets vests in the
municipality in terms of s 208 of the Ordinance, the municipality’s
argument that it had ‘taken over’ Nyala Drive as a public street implies
that it had somehow, informally and unilaterally, acquired ownership of
a portion of Mrs Brooks’ property – in the process depriving her of
ownership of that portion – without any formal decision or recordal to
that effect and without any steps having been taken in respect of
expropriation as contemplated by s 190 of the Ordinance. This
proposition only has to be stated for it to be rejected.

[28] Faced with these formidable obstacles, counsel for the munici-
pality – without expressly abandoning the point – rightly did not press it
with much vigour. In my view the municipality’s contentions regarding a
‘takeover’ of Nyala Drive as a public street are simply untenable.
The Surveyor-General’s diagrams
[29] The final leg of the municipality’s argument received scant
attention in the papers filed on its behalf. It is based on para (d) of the
definition which, to repeat, refers to a street ‘which is shown on a
general plan or diagram of any private township situate in the area of a
local authority filed in the Deeds Registry or the Surveyor-General’s
Office and to which the owners of erven or lots in such township have a
common right of use’.
[30] In support of this point, Mr Mitchell attached an extract from a
drawing (No FT8A–4B) compiled and drawn in the office of the
Surveyor-General, which was completed on 8 May 1963 and kept up to
date with information relating to subdivisions and servitudes. It shows
the individual properties and roads in the general area of Drummond.
Where Nyala Drive is situated, the diagram clearly indicates ‘right of
way servitude SG 200/48’.
[31] Mr Birkett, in his supporting affidavit, briefly deals with this
aspect as follows:
‘I confirm also that as far as our offices are concerned, Nyala Drive is reflected on
diagrams of the private townships created in the area serviced by the road, filed in

our offices, as being one to which the owners of erven in such townships have a
common right of use.’
[32] I shall accept for present purposes, without deciding the point,
that the properties and their subdivisions shown on the general plan or
diagram relied on fall in ‘a private township situate in the area of a local
authority’. The further requirement is more problematic: the diagram
must depict a street ‘to which the owners of erven or lots in such
township have a common right of use’. This is the aspect in the
definition on which the municipality strongly relies. In my view, the
reliance is misplaced. It is clear beyond doubt, and confirmed by the
general diagram, that the owners of properties in Nyala Drive enjoy their
common right of use of the street by virtue of the servitude of right of
way. (The rights derived from the servitude are, of course, also enjoyed
by the owners of new subdivisions, the general principle being that ‘[i]f
the dominant land is physically subdivided between different co-owners,
the servitude continues to be attached to each subdivided portion of the
land in so far as it can benefit from the servitude, provided that it does
not increase the burden on the servient land.’)9 Can the mere fact that the
street is shown on the Surveyor-General’s diagram now convert what
manifestly is a private street into a public street? This would clearly be
an absurd result, which could not have been intended by the legislature.
For para (d) of the definition to make any sense, one would therefore
have to interpret it so as to exclude from its ambit of application streets
in respect of which owners enjoy their common right of use by virtue of
a servitude of right of way.

9 24 Lawsa (2 ed) para 399 and the authorities referred to therein.

[33] I am accordingly of the view that para (d) of the definition
likewise does not assist the municipality in establishing that Nyala Drive
is a public street.
Costs
[34] It follows from the foregoing analysis that the appeal falls to be
dismissed with costs. It remains to deal briefly with one aspect relating
to costs. The court below, when granting leave to appeal to this court,
ordered the municipality to bear the costs of Mrs Brooks, not only with
regard to the application for leave to appeal (which included an
application by the municipality for condonation for late noting of its
appeal), but also ‘the costs of the appeal incurred by [Mrs Brooks] in
prosecuting her defence to the appeal’. The municipality subsequently
obtained the leave of the court below to appeal against that portion of the
order as well.
[35] The learned judge, in granting leave to appeal, did not refer to
any authority to justify his order regarding the costs of appeal. He
reasoned as follows:
‘I am of the view that we all function in a new constitutional environment where
citizens ought not to be deprived of their rights to go forward and ventilate them
simply because of lack of funds. We are in a constitutional environment where every
citizen now has a right to challenge any act of authority on reasonable grounds and in
a case of this kind I am satisfied that an appropriate order for costs should be that the
municipality bear the costs of appeal and if I am proved to be wrong certainly those
costs will be reflected in an appropriate order made in due course by the Supreme
Court of Appeal. The judgment in favour of the applicant would be otherwise
nugatory if her lack of funds prevented her from defending the judgment.’

[36] Counsel for the municipality urged us, as a matter of principle, to
disapprove of the precedent set by the court below, submitting that such
order was ‘grossly irregular and without precedent and that the grant
thereof constitutes a gross misdirection’.
[37] In view of the conclusion to which I have come with regard to
the merits of the appeal, the order of the court below regarding the costs
of appeal makes no difference in this instance; the municipality will in
any event have to pay those costs. Any comments that we may make in
that regard will therefore be nothing more than obiter dicta. Suffice to
say that, by ordering an appellant in anticipando to pay the costs of the
appeal, a lower court in effect fetters the discretion of a court of appeal,
which is undesirable.
Order
[38] The appeal is dismissed with costs.

B M GRIESEL
Acting Judge of Appeal

APPEARANCES
FOR APPELLANT:
V I Gajoo SC
Instructed by:
Ngidi & Company Inc, Durban

Symington & De Kok, Bloemfontein

FOR RESPONDENT:
A A Gabriel

Instructed by:
Calitz Crockart & Associates, Durban

Matsepes Inc, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
27 May 2010
Status:
Immediate
Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal.
* * *
ETHEKWINI MUNICIPALITY v R BROOKS
– Case No 411/09

The Supreme Court of Appeal today dismissed an appeal by the Ethekwini
Municipality against a judgment of the KwaZulu-Natal High Court, Durban, relating
to the status of a road in the Drummond area, known as Nyala Drive.
The respondent, Mrs Rosalind Brooks, applied to the high court for an order
declaring that the road is not a public road, as defined in s 1 of the Local Authorities
(Natal) Ordinance 25 of 1974. It appeared from the evidence that the road was
created during the 1960s within the area of a servitude of right of way that runs over
the property of Mrs Brooks. The road, which is a cul-de-sac, links her property as
well as certain adjoining subdivisions in the area to Thousand Hills Drive.
The municipality argued that the public had acquired a right to use the road;
alternatively, that the municipality had taken over the road in question, as
contemplated by the Ordinance. In the further alternative, the municipality relied on
the provision in the definition to the effect that it is a street ‘which is shown on a

general plan or diagram of any private township situate in the area of a local
authority filed in the Deeds Registry or the Surveyor-General’s Office and to which
the owners of erven or lots in such township have a common right of use’. The high
court rejected the municipality’s arguments. It accordingly granted a declaratory
order in favour of Mrs Brooks, holding that Nyala Drive is a private road.
On appeal, the SCA confirmed the judgment of the high court and dismissed the
appeal with costs.

--ends--