THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 1224/2021

In the matter between:
MARTINA CHRISTINA CATHARINA WULFFERS                APPELLANT

and

BOXER DALE HOLDINGS (PTY) LTD

FIRST RESPONDENT

HENRY ANTHONY KLITSIE

SECOND RESPONDENT
ANTON HEINRICH GENADE                                        THIRD RESPONDENT

Neutral citation: Wulffers v Boxer Dale Holdings (Pty) Ltd and Others
(1224/2021) [2022] ZASCA 172 (1 December 2022)
Coram:
PONNAN, PLASKET, MABINDLA-BOQWANA JJA and
NHLANGULELA and WINDELL AJJA
Heard:

7 November 2022
Delivered:
1 December 2022

Summary:
Property law – servitude and way of necessity (via ex necessitate)
over immovable property – parties unable to agree on a route – clear dispute of fact
– application procedure not suitable – application dismissed.

__________________________________________________________________
ORDER
__________________________________________________________________
On appeal from: Eastern Cape Division of the High Court, Port Elizabeth (Naidu
AJ, sitting as court of first instance):
The appeal is upheld and the cross-appeal is dismissed, in each instance with
costs.
Paragraph 2 and 3 of the high court’s order are set aside and replaced with the
following:
‘The application is dismissed with costs.’

__________________________________________________________________
JUDGMENT
__________________________________________________________________
Windell AJA (Ponnan, Plasket, Mabindla-Boqwana JJA and Nhlangulela AJA
concurring):
[1] This is an appeal and cross-appeal from the Eastern Cape Division of the High
Court, Port Elizabeth (the high court). The matter concerned a dispute as to whether
a servitude exists over a portion of land owned by the appellant, Martina Christina
Catharina Wulffers (Ms Wulffers).

[2] Ms Wulffers and the respondents are all owners of portions of the farm Goed
Geloof 745, in the district of Humansdorp (the farm), which is situated along the
Krom River (the river) in St Francis Bay. The farm was subdivided in October 2010.

Prior to the subdivision of the farm, it was jointly owned by the Klitsie and Wulffers
families in equal shares since 1968. Currently, the second respondent, Henry
Anthony Klitsie, and his two brothers (the Klitsies), are the owners of the remainder
of Portion 133 of the farm. Ms Wulffers is the owner of Portion 233, which is a
partition of Portion 133. The partition was registered on 19 August 2015. The first
respondent, Boxer Dale Holdings (Pty) Ltd (Boxer Dale), represented by Pieter
Jansen van Vuuren, and the third respondent, Anton Heinrich Genade (Mr Genade),
are the owners of two adjacent properties, namely, Portions 159 and 51.

[3] On a sketch plan (see below), the subdivision of Portion 133 is indicated.
Essentially, the Klitsies own the two non-contiguous portions of land, in extent 0,
53 Ha and 0, 45 Ha each (Part A and Part C). Part B, which is owned by Ms Wulffers,
is in the middle of Part A and Part C. Part C is landlocked (the landlocked property)
and the Klitsies can only access it by traversing Part B, the Wulffers property. The
properties of Boxer Dale and Mr Genade are situated on the western side of Part A,
and their approximate positions are marked on the sketch plan as ‘D’ (Boxer Dale)
and ‘E’ (Mr Genade). The properties of Boxer Dale and Mr Genade are not
landlocked. They only require a route over the Wulffers property to enjoy access to
the river on an adjacent property (marked ‘F’), where they and the Klitsies plan to
build a jetty to launch their boats. In that regard, Boxer Dale and Mr Genade rely on
a general reciprocal praedial road servitude, 6 metres wide, that was registered in
1993 over Portion 133 (Portions A, B and C).

[4] The respondents assert that they had access to the landlocked property by
traversing Ms Wulffers’ property via the route depicted as ‘x-y’ on the sketch plan.
Ms Wulffers, describes that route as a ‘foot path’, which she says the Klitsies
established without obtaining her permission. She contends that it bisects her
property and expressed a preference for a route that would run along the western
boundary of her property. However, there may be a difficulty with obtaining
permission from the relevant government department for this route, because of its
proximity to a wetland. In February 2019, Ms Wulffers suggested as an alternative,
the route depicted as ‘m-n’ on the sketch map, which she described as the ‘fairest
route’.  However, that did not appear to have been acceptable to the respondents.
When attempts to resolve the impasse failed, Ms Wulffers felt compelled to erect a
fence at a point close to her property on the 'x-y’ route in March 2019.

[5] The respondents then launched urgent application proceedings in the high
court, in which they sought an interim order (Part A), operating as a rule nisi, for Ms
Wulffers to remove the fence and the boom gate she had erected on her property.
They further sought an order that Ms Wulffers be interdicted and restrained from
erecting further installations on her property which would have the effect of
interfering with the respondents’ access to the landlocked property. On 17 December
2019, the rule nisi was granted, pending the final determination of the relief sought
in Part B. In Part B the respondents sought an order that a ‘servitude of right of way’
be registered over Ms Wulffers property in favour of the respondents as depicted on
the sketch map ‘x-y’.

[6] On 29 September 2020, the high court discharged the rule nisi, but found in
favour of the second respondent only as far as the relief sought in Part B was
concerned. It granted an order that a ‘route of registered servitude of right of way’
be registered over the Wulffers property, in favour of the remainder of Portion 133
as depicted on the sketch map as ‘x-y’. It further ordered that such servitude of right
of way was to measure not less than five (5) metres in width.

[7] Ms Wulffers and the respondents respectively sought leave to appeal and cross
appeal from the high court. Ms Wulffers contended that the high court should have
dismissed the respondents’ application in toto, instead of granting relief to the
Klitsies in the terms set out in the order (the appeal). The respondents complained
that the high court erred in discharging the rule nisi and in dismissing the relief
sought by Boxer Dale and Mr Genade under Part B of the Notice of Motion (the
cross-appeal). The appeal and cross-appeal are with leave of the high court.

[8] In the founding affidavit (deposed to by the second respondent) all the
respondents relied on what they described as a registered reciprocal praedial
servitude that was registered over Portion 133 (Portion A, B and C) in 1993, the
relevant part of which reads:
‘“Property Two” shall be subject to a General Servitude of Road Six (6) metres wide, from
“Property One” to “Property Three” the route of which is to be agreed upon by the registered
owners, in favour of “Properties Three to Thirteen”, subject to the terms and conditions more fully
set out in paragraph 9.’

[9] The servitude is defined as being from ‘Property One’ to ‘Property Three’. It
further provides that the servitude road must be agreed upon by the owners of
‘Property Two’, ‘Property Three’ and ‘Property One’. According to the descriptions
of the properties, ‘Property Two’ is Portion 133 (Part A, B and C) before the
subdivision and partition. ‘Property One’ is Portion 134 and ‘Property Three’ is
Portion 22 (belonging to Boxer Dale).

[10] Putting aside for the moment the dispute between Ms Wulffers and the
respondents about which route is most suitable, there is no evidence on the papers
to indicate where ‘Property One’ (Portion 134) is situated in relation to ‘Property
Two’ and ‘Property Three’, or who the current owner of ‘Property One’ is. It seemed
to have been accepted before this court that those property owners may well have a
direct and substantial interest in these proceedings, because any route fixed here will
likely impact their properties as well.  Further, the route from ‘Property One’ to
‘Property Three’ has never been agreed upon by the registered owners. There is no
evidence that the owner of ‘Property One’ had been consulted in determining the
road and if they consulted, what such owner’s attitude is to its location. In the
absence of these crucial facts, it is impossible to determine the route from ‘Property

One’ to ‘Property Three’ on the evidence available. As a result, Boxer Dale and Mr
Genade failed to establish their entitlement to any relief under Part B.

[11] This brings me to the relief claimed by the Klitsies. Part C is landlocked.   It
may well be that the Klitsies are entitled to a way of necessity (via ex necessitate)
over Ms Wulffers’ property to access the landlocked property.1  But, such a case was
not advanced in the respondents’ founding papers.  However, Ms Wulffers appears
in principle to accept that the Klitsies may indeed have such a right.  It is the route
on which they seem unable to agree.

[12] Rights over the property of another must be exercised civiliter modo.2 A way
of necessity over the servient land must be a route that causes the least damage and
prejudice to the latter and compensation in proportion to the advantage gained by
the dominant owner and the disadvantages suffered by the servient owner is payable
when this happens (ter naaster lage en minster schaden).3

[13] Despite a tender by Ms Wulffers to agree to register a right of way (‘m-n’) in
favour of the Klitsies, that was not accepted. There is a real dispute of fact on the
papers as to which route would be the most appropriate and least onerous for the
servient owner. There is also a dispute as to the width of the road. In principle, the
width of the road depends on the needs of the enclosed property.4

1 See Van Rensburg v Coetzee 1979 (4) SA 655 (A) at 671.
2 Hollmann and Another v Estate Latre 1970 (3) SA 638 (A) at 645D; Tshwane City v Link Africa and Others 2015
(6) SA 440 (CC) paras 142-144.
3 See Van der Walt The Law of Servitudes 357-358.
4 Van Rensburg at 675 G.

[14] It is trite that motion proceedings are not suited to resolving the kinds of
disputes of fact that we have here. They cannot be resolved on paper. When the
respondents elected to proceed by way of application when there were foreseeable
disputes of fact, they did so at their own peril. As none of the respondents had
established any entitlement to relief under Part B, they were not entitled to any
ancillary relief under Part A either. The high court therefore erred in determining the
matter on affidavit and the application should have been dismissed with costs. While
costs ought to follow the result, the costs of only one counsel are merited.

[15] In the result, the following order is made:
The appeal is upheld and the cross-appeal is dismissed, in each instance with
costs.
Paragraph 2 and 3 of the high court’s order are set aside and replaced with the
following:
‘The application is dismissed with costs.’

__________________________
L WINDELL
ACTING JUDGE OF APPEAL

Appearances

For appellant:

P Jooste and T Rossi
Instructed by:

Nel Mentz Steyn Ellis Attorneys, Humansdorp
McIntyre Van der Post, Bloemfontein

For respondent:

O Ronaasen SC and L Ellis
Instructed by:

Greyvensteins Incorporated, Port Elizabeth

Muller Gonsior Incorporated, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
1 December 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not form
part of the judgments of the Supreme Court of Appeal
Martina Christina Catharina Wulffers and Boxer Dale Holdings (Pty) Ltd and Two Others [2022]
ZASCA 172
Today the Supreme Court of Appeal (SCA) upheld an appeal and dismissed a cross-appeal from the
Eastern Cape Division of the High Court, Port Elizabeth:
Ms Wulffers and the respondents are all owners of portions of the farm Goed Geloof 745, in the district
of Humansdorp (the farm), which is situated along the Krom River (the river) in St Francis Bay. The
farm was subdivided in October 2010. Prior to the subdivision of the farm, it was jointly owned by the
Klitsie and Wulffers families in equal shares since 1968. Currently, the second respondent, Henry
Anthony Klitsie, and his two brothers (the Klitsies), are the owners of the remainder of Portion 133 of
the farm. Ms Wulffers is the owner of Portion 233, which is a partition of Portion 133. The partition
was registered on 19 August 2015. The first respondent, Boxer Dale Holdings (Pty) Ltd (Boxer Dale),
represented by Pieter Jansen van Vuuren, and the third respondent, Anton Heinrich Genade (Mr
Genade), are the owners of two adjacent properties, namely, Portions 159 and 51.

Essentially, the Klitsies own the two non-contiguous portions of land, in extent 0,53 Ha and 0,45 Ha
each (Part A and Part C). Part B, which is owned by Ms Wulffers, is in the middle of Part A and Part
C. Part C is landlocked (the landlocked property) and the Klitsies can only access it by traversing Part
B, the Wulffers property. The properties of Boxer Dale and Mr Genade are situated on the western side
of Part A. The properties of Boxer Dale and Mr Genade are not landlocked. They only require a route
over the Wulffers property to enjoy access to the river on an adjacent property, where they and the
Klitsies plan to build a jetty to launch their boats. In that regard, Boxer Dale and Mr Genade rely on a
general reciprocal praedial road servitude, 6 metres wide, that was registered in 1993 over Portion 133

(Portions A, B and C). The servitude is defined as being from ‘Property One’ to ‘Property Three’. It
further provides that the servitude road must be agreed upon by the owners of ‘Property Two’, ‘Property
Three’ and ‘Property One’. According to the descriptions of the properties, ‘Property Two’ is Portion
133 (Part A, B and C) before the subdivision and partition. ‘Property One’ is Portion 134 and ‘Property
Three’ is Portion 22 (belonging to Boxer Dale).

The respondents approached the court on application in two parts. In Part A they sought an interim
order, operating as a rule nisi, for Ms Wulffers to remove the fence and the boom gate she had erected
on her property. They further sought an order that Ms Wulffers be interdicted and restrained from
erecting further installations on her property which would have the effect of interfering with the
respondents’ access to the landlocked property. Part A was granted operating as an interim order
pending the outcome of Part B. In Part B the respondents sought an order that a ‘servitude of right of
way’ be registered over Ms Wulffers property in favour of the respondents as depicted on a sketch map
‘x-y’.

SCA found that there was insufficient information to determine the route from ‘Property One’ to
‘Property Three’. As a result, Boxer Dale and Mr Genade failed to establish their entitlement to any
relief under Part B of the application. As far as the Klitsies are concerned, it may well be that the Klitsies
are entitled to a way of necessity (via ex necessitate) over Ms Wulffers’ property to access the
landlocked property. There is however a real dispute of fact on the papers as to which route would be
the most appropriate and least onerous for the servient owner.

It is trite that motion proceedings are not suited to resolving these kinds of disputes of fact. They cannot
be resolved on paper. When the respondents elected to proceed by way of application when there were
foreseeable disputes of fact, they did so at their own peril. As none of the respondents had established
any entitlement to relief under Part B, they were not entitled to any ancillary relief under Part A either.
The high court therefore erred in determining the matter on affidavit and the application should have
been dismissed with costs. While costs ought to follow the result, the costs of only one counsel are
merited.

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