JJPC Brand Administrators & another v Lombard & others

The dispute concerned an existing access road linking the farm Ventersdraai to the R561 provincial road in Limpopo. The road had existed as a wagon road since before the 1950s and had been used continuously by the Brand family since at least 1978 to access their farms, including by heavy vehicles. Historically, the road formed part of a longer public road, but in 1973 a proclamation closed only the portion traversing Ventersdraai and Morning Star. The respondents, owners of farms over which the remaining portion of the road ran, sought declaratory relief that the road was not a public road and that they were entitled to relocate it to a new route along farm boundaries. The proposed relocation would have resulted in access to Ventersdraai at a point approximately three kilometres from the existing entrance, requiring construction of a new internal road by the appellants. The High Court granted the declaratory orders sought by the respondents. The appellants appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The order of the High Court was set aside and replaced with an order dismissing the respondents’ application with costs, jointly and severally. The appellants’ application to adduce further evidence on appeal was dismissed with costs.

The judgment clarifies South African law on when a road remains a public road after partial closure and reinforces the evidentiary burden on parties seeking declaratory relief that a road is not public. It also reaffirms and refines the principles governing relocation of servitudes, emphasising that relocation of a defined servitude is impermissible where it renders access less convenient or more expensive for the dominant owner.