JJPC Brand Administrators & another v Lombard & others

The case involved a road (the existing road) that linked the farm Ventersdraai 153 to the R561 provincial road, running approximately 11 kilometers through several farms including Morocco 143, Lusthof 150, Waterval 151 and others. The road originated as a wagon road before the 1950s and had been in continuous use since then. In 1973, the Administrator of the Transvaal closed a portion of a public road that traversed Morning Star and Ventersdraai under the Transvaal Road Ordinance 22 of 1957, but the notice did not affect the remaining portions of the public road. The late Mr JJPC Brand acquired Ventersdraai in 1968 and Kwaggadraai in 1976. The Brand family, including surviving spouse Mrs Brand and their sons (including second appellant Basie Brand), resided on Kwaggadraai from 1978 and used the existing road continuously for over 30 years, maintaining it and using it for heavy trucks transporting cattle, game and lucerne. In 2009, the third respondent (Eating Habits Pty Ltd) acquired Waterval 1 and intended to combine it with Waterval as a game farm. Finding the existing road objectionable as it ran through the middle of their envisaged game farm, the respondents sought to relocate it. Despite initial proposals and the Brand family's opposition based on a 2000 letter from the Department of Public Works stating the road retained its status as a public road, the third respondent acquired Waterval in 2010. In 2012, the respondents launched an application seeking to declare the existing road not a public road and to relocate it to a new route along the southern boundaries of the farms, entering Ventersdraai at its south-eastern corner approximately 3 kilometers from the existing entrance.

• Whether the existing road retained its status as a public road after the 1973 partial closure
• Whether the respondents discharged the onus of proving that the existing road was not a proclaimed public road
• Whether a praedial servitude of right of way had been acquired by prescription in favour of Ventersdraai
• Whether the respondents were entitled to relocate a defined servitude of right of way
• Whether the proposed relocation would cause material prejudice to the dominant owner
• The requirements for relocation of a defined servitude at the instance of the servient owner

1. The appellants' application to adduce further evidence on appeal was dismissed with costs. 2. The appeal was upheld with costs to be paid by the respondents, jointly and severally. 3. The order of the court a quo was set aside and replaced with: 'The application is dismissed with costs to be paid by the respondents, jointly and severally.'

1. Where a portion of a proclaimed public road is closed by proclamation, the remaining portion of that proclaimed public road retains its status as a public road. 2. Where only a portion of a public road established by public use is closed, whether the remaining portion retains public road status depends on the circumstances of each case, including whether it continues in undisturbed public use and connects public places. 3. A party seeking to establish that a road is not a public road bears the onus of proving on a balance of probabilities that it was not proclaimed or part of a proclaimed public road, requiring particularity in searches of official records. 4. A praedial servitude of right of way acquired by acquisitive prescription creates an original real right enforceable against the whole world without need for registration. 5. A defined servitude of right of way may be relocated at the instance of the servient owner only if: (a) the servient owner proves material inconvenience; (b) the relocation occurs on the servient tenement; (c) the relocation will not prejudice the dominant owner; and (d) the servient owner pays all costs. 6. Prejudice to the dominant owner in the context of servitude relocation must be given a wide meaning and includes any situation where the proposed new route would be less convenient, less practical or more expensive than the existing route. 7. A requirement that the dominant owner construct additional infrastructure at their own expense to access their property from a relocated servitude route constitutes material prejudice that precludes relocation.

The court noted that it was not convinced the third respondent had established the first Linvestment requirement (material inconvenience to the servient owner) but did not decide this point as it was not argued. The court emphasized that further evidence should only be admitted on appeal in exceptional circumstances, and that subsequent events or amplification of existing evidence do not constitute exceptional circumstances. The court commented that the burden on the servient owner to prove material inconvenience is justifiable given that unilateral relocation involves a serious infringement of the dominant owner's right to be consulted regarding contractual rights (and this reasoning extends to rights created by prescription). The court expressed approval of Van der Walt's scholarly analysis on this point. The court also noted some confusion regarding who the administrators of the testamentary trust were at the commencement of proceedings, though this was clarified before the appeal hearing.

This case is significant for clarifying the law on public roads and servitudes of right of way in South Africa. It establishes important principles regarding: (1) the status of portions of public roads after partial closure - that proclaimed public roads retain their status unless de-proclaimed, while roads established by public use require contextual analysis; (2) the onus on parties seeking to establish that a road is not public; (3) the application of acquisitive prescription under the Prescription Act 68 of 1969 to create enforceable praedial servitudes of right of way; and (4) the requirements for relocation of defined servitudes following Linvestment, particularly emphasizing that prejudice includes situations where the dominant owner would be required to construct additional infrastructure at their own expense, and that the proposed route must be equally convenient, practical and not more expensive. The judgment provides important guidance on balancing the rights of servient and dominant owners in servitude relocation disputes.