THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 1223/2017

In the matter between:

JJPC BRAND ADMINISTRATORS                                                       FIRST APPELLANT
BASIE BRAND                                                                                  SECOND APPELLANT

and

P LOMBARD                                                                                       FIRST RESPONDENT
L J ENGELBRECHT                                                                       SECOND RESPONDENT
EATING HABITS (PTY) LTD                                                              THIRD RESPONDENT

Neutral citation: JJPC Brand Administrators & another v Lombard & others
(1223/2017) [2019] ZASCA 55 (1 April 2019)
Coram:
Navsa AP and Tshiqi, Wallis and Van der Merwe JJA and Eksteen AJA
Heard:
4 March 2019
Delivered:
1 April 2019

Summary:   Road – portion of public road closed – whether remaining portion a public
road depends on circumstances.
Servitude – relocation of defined servitude of right of way at instance of servient owner
– not permissible if proposed new route would be less convenient, less practical or more
expensive to dominant owner.

_____________________________________________________________________

ORDER

On appeal from: Limpopo Division of the High Court, Polokwane (Makgoba JP sitting
as court of first instance):
1  The appellants’ application to adduce further evidence on appeal is dismissed with
costs.
2  The appeal is upheld with costs to be paid by the respondents, jointly and severally.
3  The order of the court a quo is set aside and replaced with the following:
‘The application is dismissed with costs to be paid by the respondents, jointly and
severally.’

JUDGMENT

Van der Merwe JA (Navsa AP and Tshiqi and Wallis JJA and Eksteen AJA
concurring)

[1] This appeal concerns a road that links the farm Ventersdraai 153, Registration
Division L.R., Limpopo Province (Ventersdraai) to the R561 provincial road between the
towns of Baltimore and Marken. The issues for determination are whether the Limpopo
Division of the High Court, Polokwane (Makgoba JP) correctly made orders declaring:
(a) that this road (the existing road) is not a public road; and (b) that the respondents
are entitled to relocate its route.

Background

[2] The existing road runs via points C and B to point A on the map shown above.
Point A indicates the entrance to Ventersdraai. The distance between point A and the
R561 is approximately 11 kilometres. From the R561 the existing road traverses the
remainder of the farm Morocco 143 (Morocco), portion 1 of the farm Lusthof 150
(Lusthof 1), the remaining extent of the farm Lusthof 150 (Lusthof) and the remaining
extent of the farm Waterval 151 (Waterval), in that order. Upon exiting the R561 it runs
in a south-westerly direction on Morocco along its southern boundary. At the south-
western corner of Morocco it turns 90 degrees to the north-west and continues on
Morocco alongside its boundary with Lusthof 1. It then turns towards the south-west
and follows that general direction, first over Lusthof 1, then over Lusthof and finally over
Waterval up to the boundary of Ventersdraai.

[3] The late Mr JJPC Brand (the testator) acquired Ventersdraai during 1968. During
1976 he also acquired the remainder of the farm Kwaggadraai 137 (Kwaggadraai).
Kwaggadraai adjoins Ventersdraai at the latter’s north-eastern corner. Ventersdraai and
Kwaggadraai presently vest in the first appellant, the administrators of a trust created
by the joint will of the testator and his surviving spouse, Mrs Susanna Dorethea Brand
(Mrs Brand). There was some confusion at the commencement of the proceedings in
the court below as to who the administrators of the testamentary trust were, but it is

clear that Mrs Brand was one of them. In terms of a power of attorney filed on behalf of
the first appellant shortly before the hearing of the appeal, the administrators are
indicated as Mrs Brand and two of her sons, Mr Jacobus Johannes (Basie) Brand and
Mr Johannes Hendrik (Tommy) Brand. Mr Basie Brand is the second appellant.

[4] The registered owner of Morocco is Go Lokile Farm (Pty) Ltd. It did not oppose
the respondents’ application in the court a quo nor participated in the appeal. The first
respondent, Mr Philip Lombard, was previously the owner of Lusthof 1. He transferred
ownership of Lusthof 1 to a Mr Nicolaas Stephanus Botes on 12 September 2013, but
for some unexplained reason remained a party to the proceedings in the court a quo
and the appeal. It is not disputed that Mr Botes aligns himself with the respondents. The
second respondent is Mrs Louisa Jacoba Engelbrecht. She is the owner of Lusthof. The
third respondent, Eating Habits (Pty) Ltd, is the owner of Waterval. It also owns portion
1 of the farm Waterval 151 (Waterval 1). Waterval 1 adjoins the southern boundary of
Waterval and both adjoin the eastern boundary of Ventersdraai.

[5] According to the evidence it is well known in the area surrounding the existing
road that it originated as a wagon road (‘wapad’) long before the1950’s. The second
respondent had resided on Lusthof since 1955 and confirmed that the existing road had
been in use since then. Mrs Brand first arrived in the area during 1962 and also
confirmed that the existing road had been used since that time. The existing road allows
convenient access to the homesteads on Ventersdraai and on the other farms along its
route. This probably determined its route in the first place.

[6] As I have said, the testator acquired Ventersdraai during 1968. At that time the
existing road formed part of a public road that continued over Ventersdraai from its
boundary with Waterval (point A on the map), in a south-westerly direction and then in
the same direction over the adjoining farm Morning Star 156 (Morning Star). This public
road then proceeded southward over the farm Eulalie 136 until it joined a public road
between Jemima and Marken. This public road thus linked the Baltimore/Marken and
Jemima/Marken public roads.

[7] On 14 March 1973, however, the then Administrator of the Transvaal published
a notice in the Provincial Gazette headed ‘CLOSING OF PUBLIC ROAD ON THE
FARMS MORNINGSTAR 165 LR (sic) AND VENTERSDRAAI 153 L.R.: DISTRICT OF

ELLISRAS.’ (The notice). It is clear from the notice and the accompanying sketch plan
that only that portion of the public road that traversed Morning Star and Ventersdraai,
was closed. The notice stated that the Administrator acted under the provisions of s
31(1) of the Transvaal Road Ordinance 22 of 1957. This meant that the notice
constituted approval by the Administrator of an application that had been made under
s 28(1) of the Ordinance by ‘a person who desires that any public road other than a
provincial road be closed’. The notice therefore did not, in its terms, affect the remaining
portions of the public road, southward of Morning Star and to the east of Ventersdraai.

[8] During 1978 the testator and Mrs Brand moved their residence to Kwaggadraai.
They and their descendants (the Brand family) have resided on Kwaggadraai ever
since. When these proceedings were instituted during 2012, Mrs Brand had
continuously resided on Kwaggadraai for more than 33 years. At that time her aforesaid
two sons and their families also resided on Kwaggadraai. The Brand family have used
the existing road via Ventersdraai continuously since at least 1978. This included use
by heavy trucks transporting cattle, game and lucerne. The Brand family also
maintained the existing road during this period.

[9] The only modification to the route of the existing road took place during 1992. At
that time the existing road traversed the middle of Morocco. Because a pan on Morocco
rendered a portion of the route difficult to use when it rained, all interested parties
agreed to move the route to run along the boundaries of Morocco as detailed above.

[10] The third respondent acquired Waterval 1 only during 2009. It then became
interested in also acquiring Waterval, which it intended to use together with its existing
farm as a unit, for purposes of a game farm. Its representatives found it objectionable
that the existing road would run more or less through the middle of the envisaged
combined game farm. Before it acquired Waterval, the representatives of the third
respondent met with Mrs Brand and the second appellant, to discuss the possible
relocation of the existing road over Waterval. At that time they proposed that after
entering Waterval from Lusthof, the existing road would turn towards the north-west and
would from there, run along the eastern, northern and western boundaries of Waterval,
in that order, up to the present entrance to Ventersdraai.

[11] The appellants did not agree to this proposal. The second appellant, inter alia,
said that the existing road had been used for more than 30 years and produced a letter
that, according to him, supported the stance that the use of the existing road could not
be impeded. It turned out that this was a letter from the regional head of the western
region of the Department of Public Works of the Northern Province, dated 12 September
2000 (the letter) and addressed to Mrs Brand. The letter referred to an application by a
previous owner of Waterval to close the existing road over Waterval and informed Mrs
Brand that the relevant roads board had decided that the existing road ‘may not be
closed and shall retain its status as a public road’. When the third respondent acquired
Waterval during July 2010, it knew that the appellants were opposed to the relocation
of the existing road and on what grounds.

[12] As I have said, the respondents launched their application during 2012. For
present purposes it suffices to say that the respondents claimed orders declaring that
the existing road was not a public road and that they were entitled to relocate it
according to their proposal. In their application, however, the respondents proposed a
road entirely different from what they had proposed earlier. They proposed a route along
points D and E to point F on the map. The proposed new road would continue from the
south-western corner of Morocco in the same general direction along the southern
boundaries of Lusthof 1, Lusthof and Waterval, until it reached Ventersdraai. It is
immediately apparent that the proposed new road would provide entrance to
Ventersdraai only at its south-eastern corner (point F). It is common cause that this is
approximately three kilometers from where the existing road enters Ventersdraai (point
A).

[13] The appellants maintained that it had not been shown that the existing road was
no longer a public road. They contended that, in any event, a praedial servitude of right
of way along the existing road had by acquisitive prescription been created in favour of
the owners of Ventersdraai. As the proposed new road would cause material prejudice
to the owners of the dominant tenement, so they argued, the relocation of the servitude
was precluded by law.

[14] The court a quo held that the existing road was not a public road and in para 1
of its order issued a declaratory order to that effect (the first declaratory order). Despite
accepting that the appellants had established a right of way along the existing road, in

para 2 of its order, it declared that the respondents are entitled to relocate it as latterly
proposed by them (the second declaratory order) and made further orders aimed at
giving effect thereto (paras 3-7 of the order). Paragraph 8 of the order directed the
appellants, jointly and severally, to pay the costs of the application. The court a quo
refused leave to appeal but this court, subsequently, granted leave to the appellants to
appeal to it.

Public Road
[15] The definition of ‘public road’ in s 2 of the Transvaal Road Ordinance 5 of 1912,
provided for essentially two categories of public roads. They were:
‘(a) any road proclaimed as such under this Ordinance or which has been established or
become a public road under this or any other Ordinance;
(b) any road or path however created . . . which at the commencement of this Ordinance has
been in the undisturbed use of the public or which the public has had the right to use during a
period of not less than fifteen years.’
Section 7(1)(a) of this Ordinance provided that the Administrator of the Transvaal may
‘from time to time as occasion requires’ by proclamation declare any road to be a public
road.

[16] The whole of Ordinance 5 of 1912 was repealed by the Roads Ordinance 9 of
1933. Its definition of ‘public road’ included paras (a) and (b) above, in identical terms.
The provisions of s 7(1)(a) of Ordinance 9 of 1933 were also virtually identical to those
of its predecessor. It provided, however, that a proclamation under s 7(1)(a) had to be
published in the ‘Official Gazette of the Province of Transvaal’.

[17] The Roads Ordinance 22 of 1957, in turn, repealed the whole of Ordinance 9 of
1933. It retained the two categories of public roads, in the following terms:
‘(1) any road declared as such under this Ordinance, or designated as a public road under this
Ordinance or any other law, and includes any temporary deviation thereof;
(2) any road, however created . . . which has been in the undisturbed use of the public during a
continuous period of not less than fifteen years’.
Section 5(1)(a) of Ordinance 22 of 1957 provided that the Administrator may by notice
in the Provincial Gazette declare any road to be a public road after investigation and
report ‘by the board concerned’. This referred to the road board for the particular area
that had been constituted under Ordinance 5 of 1912 that remained in place under
Ordinances 9 of 1933 and 22 of 1957.

[18] Ordinance 22 of 1957 was repealed by the Limpopo Roads Agency Limited and
Provincial Roads Act 7 of 1998. That Act established the Limpopo Roads Agency and
made it responsible for provincial roads of the Limpopo Province. Section 71(1) of this
Act, in essence, provides that any action or decision taken under or recognised by
Ordinance 22 of 1957, remained of full force and effect and s 55(6) thereof provides
specifically for the continued existence of the aforesaid road boards.

[19] It follows that the public road that the existing road formed part of, referred to in
the notice, could either have been established by proclamation or by public use. A
proclaimed public road will generally only cease to be a public road if it is closed by
proclamation. The same must in my view apply when only a portion of a proclaimed
public road is de-proclaimed. The remainder of the proclaimed public road would in
these circumstances retain that status.

[20] The position may be different when a portion of a public road that had been
established by public use, is closed, albeit by proclamation. The remaining portion of
such a road would not necessarily cease to be a public road. See Botha v Bukes &
another 1955 (1) SA 581 (O) at 586G-H. Whether it retains that status, would depend
on the circumstances of each case. One question would be whether the remaining
portion continues to be in the undisturbed use of the public and the answer to this
question depends on whether the remaining portion leads from one public place to
another and/or is used by the public at large as a matter of general right. See  Rex v
Erasmus 1947 (3) SA 568 (T) at 570-571 and Roos v Mossop 1952 (1) SA 8 (T) at 11D-
F and 12F-13B. (In both these cases the court had to determine whether the road in
question was a public road under Ordinance 9 of 1933).

[21] The aim of the respondents’ application was the relocation of the existing road.
In order to achieve that aim, they had to show that the existing road was not a public
road. Thus, the onus rested on the respondents to prove on a balance of probabilities,
in the first place, that the existing road was not a proclaimed public road or a part
thereof. In the replying affidavits, the respondents produced evidence that some
searches of official records did not provide any indication that the existing road had
been part of a proclaimed public road. There is, however, such a lack of particularity in
respect of the nature, sources and extent of these searches that the court a quo should

not have been satisfied that a proper case had been made for the grant of the first
declaratory order.

[22] In the result, the first declaratory order must be set aside. As it follows that the
existing road may have to be regarded as a public road, the second declaratory order
was incompetent. But assuming that the respondents established that the existing road
was not a public road, it would, for the reasons that follow, in any event not have been
entitled to the second declaratory order.

Relocation of right of way
[23] By the end of 2011, the owners of Ventersdraai had used the existing road openly
and as though they were entitled to do so for an uninterrupted period of more than 30
years, since at least 1978. The appellants would, on acceptance of the case of the
respondents that the existing road was not a public road, therefore have established
that a praedial servitude of right of way along the existing road had been acquired in
terms of s 6 of the Prescription Act 68 of 1969 in favour of Ventersdraai as the dominant
tenement. This was never disputed by the respondents and correctly accepted by the
court a quo. When a servitude is acquired by prescription, an original real right is created
which is enforceable against the ‘whole world’ without the need for registration. See
Cillie v Geldenhuys [2008] ZASCA 54; 2009 (2) SA 325 (SCA) para 13 and AJ van der
Walt The Law of Servitudes 1 ed (2016) at 322.

[24] I therefore turn to the issue of relocation of such right of way. The starting point
is the fundamental principle of the law of servitudes, namely that the servient owner
may not do anything that impedes the use of the servitude. A servitude of right of way
may be constituted either along a specific route (a definite or defined servitude) or
generally (simpliciter), in which case the entire servient tenement is subject to the
servitude and the owner of the dominant tenement may select a route provided only
that he does so civiliter modo. See Nach Investments (Pty) Ltd v Yaldai Investments
(Pty) Ltd & another 1987 (2) SA 820 (A) at 831C-E. The right of way in question was
created in respect of the specific route and is a definite servitude.

[25] In Gardens Estate, Ltd v Lewis 1920 AD 144 at 150 this court said:
‘A definite servitude having originally been constituted, it could only be altered by mutual
consent. In this respect a servitude as constituted differs from a servitude created simpliciter

(D. 8.1.9). In the latter case, according to Voet 8.3.8, the owner of the dominant tenement has
the election where to lay the line, which he must however exercise civiliter. If he has once
exercised his election, he cannot afterwards change. But the owner of the servient tenement
would have the right to do so provided the new route is as convenient as the old one (cf. McCabe
v. Rubidge, 1913 A.D. 441). When Voet, 1.50, says that the owner of the servient tenement has
the right to point out another route to that which has been agreed upon (vel conventione
designatum fuerat) he speaks of servitudes created simpliciter.’

[26] This was the position in our law until the decision in Linvestment CC v
Hammersley & another [2008] ZASCA 1; 2008 (3) SA 283 (SCA). After having had
regard to comparative law (paras 27-30) the court developed the law to also permit
relocation of definite servitudes at the instance of the owner of the servient tenement in
the following terms:
“‘It is declared that if the owner of a servient tenement offers a relocation of an existing defined
servitude of right of way the dominant owner is obliged to accept such relocation provided that:
(a) the servient owner is or will be materially inconvenienced in the use of his property by the
maintenance of the status quo ante;
(b) the relocation occurs on the servient tenement;
(c) the relocation will not prejudice the owner of the dominant tenement;
(d) the servient owner pays the costs attendant upon such relocation including those costs
involved in amending the registration of the title deeds of the servient tenement (and, if
applicable, the dominant tenement).’”

[27] In the result, the law in respect of the relocation of a definite servitude was
broadly equated to that pertaining to the relocation of servitudes created generally.
However, two observations need to be made in the light of the aforesaid passage from
Gardens Estate and of what was said in Rubidge v McCabe & Sons and Others 1913
AD 433. There Lord De Villiers CJ said at 441:
‘As owners of the dominant tenements the owners must exercise their rights in a manner least
oppressive to the defendant and as owner of the servient tenement the defendant has the right,
after due notice to the plaintiffs, to divert the course of the road provided – and this is the most
important proviso – it does not by such diversion make the use of the road less convenient or
more expensive to the plaintiffs.’
In the same case Solomon JA said at 445:
‘The evidence, in my opinion, does not establish that there was a public road over the farm, but
rather that a servitude of right of way existed, the plaintiffs’ farms being the dominant and the
defendant’s farm the servient tenements. And if that be the legal position it was competent to

the defendant upon giving due notice to the plaintiffs to divert the course of such road, provided
that the new road was equally practicable and convenient to them.’

[28] The first observation is that the owner of a servient tenement in respect of a
servitude created generally, has the right to change its route, provided that he or she
does not cause inconvenience to the owner of the dominant tenement. The first
requirement for the relocation of a defined servitude in Linvestment is that the owner of
the servient tenement must show that he or she will be materially inconvenienced if the
route is not changed. I agree with Van der Walt p 423 that this burden is justifiable:
‘Since the switch to a flexible rule that allows for unilateral relocation involves a serious
infringement of the dominant owner’s right to be consulted if a right originally created by contract
is subsequently amended, it is reasonable to expect that the servient owner who wants the
route changed should start off by proving clearly that the reasonable use of her land would be
significantly impaired if the right of way is not relocated.’
This is equally applicable to a right of way originally created by acquisitive prescription.

[29] The second observation is that under our law a right of way simpliciter could not
be relocated if the proposed new route would be less convenient, less practical or more
expensive to the owner of the dominant tenement. I do not think that Heher JA intended
the third requirement in Linvestment to depart from this formulation. The draft
indigenous code of law that he regarded as ‘a distillation of pure Roman-Dutch law in
its final stage of development’ (para 23), stated in this regard that the dominant owner
may not refuse an offer by the servient owner, at his cost, of an equally good and
convenient (‘even goede en even gemakkelijke’) route. A wide meaning must be
ascribed to the prejudice referred to in the third requirement in Linvestment.

[30] The first and second respondents did not even attempt to show the first
requirement in Linvestment. I am by no means convinced that the third respondent
established this requirement, but as this was not argued, I confine myself to the issue
of prejudice. It will be recalled that the proposed new route would provide access to
Ventersdraai at its south-eastern corner. This is approximately three kilometres from
where the existing road enters Ventersdraai and gives access to the homestead and
the network of farm roads on Ventersdraai. Thus, the proposed new route would result
in the first appellant having to construct a new road over about three kilometres at its
own expense. There was some debate on the papers as to the geophysical nature of
such new road and as to the precise cost thereof, but that is not necessary to determine.

It suffices to say that the need to construct such road would per se cause material
prejudice to the first appellant. The court a quo failed to recognise this and ought to
have refused the second declaratory order for this reason too.

Conclusion
[31] It follows that the appeal must be upheld. The appellants are entitled to their
costs in the court a quo and on appeal, which should be borne by the respondents,
jointly and severally.

[32] The appellants brought an application to adduce further evidence on appeal. The
application was opposed and replying affidavits were filed. The application was rightly
not pressed before us. It is trite that further evidence should only in exceptional
circumstances be admitted on appeal. Nothing exceptional was shown. On the contrary,
the proposed further evidence dealt with subsequent events and sought to amplify
evidence already before the court. The costs of this application should be borne by the
appellants.

[34] For these reasons it is ordered:
1  The appellants’ application to adduce further evidence on appeal is dismissed with
costs.
2  The appeal is upheld with costs to be paid by the respondents, jointly and severally.
3  The order of the court a quo is set aside and replaced with the following:
‘The application is dismissed with costs to be paid by the respondents, jointly and
severally.’

________________________
C H G van der Merwe
Judge of Appeal

APPEARANCES

For Appellants:
S W Davies

Instructed by:

JW Wessels & Partners Inc, Pretoria
C/O Kampherbeek & Pogrund Attorneys, Polokwane

Honey Attorneys, Bloemfontein

For Respondents:
M P van der Merwe SC

Instructed by:

Jarvis Jacobs Raubenheimer Inc, Hillcrest

C/O Davel De Klerk Kgatla Inc, Polokwane

Rossouws Attorneys, Bloemfontein