Wulffers v Boxer Dale Holdings (Pty) Ltd and Others

The parties were all owners of portions of the farm Goed Geloof 745 in the district of Humansdorp, situated along the Krom River in St Francis Bay. The farm was subdivided in October 2010 and had been jointly owned by the Klitsie and Wulffers families since 1968. After subdivision, the Klitsies owned two non-contiguous portions of land (Parts A and C), with Ms Wulffers' property (Part B) situated between them. Part C was landlocked and the Klitsies could only access it by traversing Ms Wulffers' property. Boxer Dale and Mr Genade owned adjacent properties and sought access to the river to build a jetty. They relied on a general reciprocal praedial road servitude (6 metres wide) registered in 1993 over Portion 133. The respondents used a route marked 'x-y' to access the landlocked property, which Ms Wulffers described as a 'footpath' established without her permission. She preferred alternative routes, suggesting the 'm-n' route as the 'fairest route' in February 2019. When the parties could not agree, Ms Wulffers erected a fence in March 2019. The respondents launched urgent application proceedings seeking an order to remove the fence and to register a servitude of right of way along the 'x-y' route.

• Whether application proceedings were appropriate where there was a clear dispute of fact as to the most suitable route for a way of necessity
• Whether the respondents established entitlement to a registered servitude of right of way based on the 1993 reciprocal praedial servitude
• Whether the Klitsies were entitled to a way of necessity (via ex necessitate) over Ms Wulffers' property to access the landlocked property
• Whether the route 'x-y' was the most appropriate route that would cause least damage to the servient owner
• What the appropriate width of any right of way should be

The appeal was upheld and the cross-appeal was dismissed, in each instance with costs. Paragraphs 2 and 3 of the high court's order were set aside and replaced with: 'The application is dismissed with costs.'

The binding legal principles established are: (1) Motion proceedings (applications) are not appropriate where there are clear and foreseeable disputes of fact that cannot be resolved on paper; (2) Where parties seek to rely on a registered reciprocal praedial servitude that requires agreement on a route by specified property owners, all affected owners must be consulted and there must be evidence of their positions before a court can determine the route; (3) A way of necessity over servient land must be exercised civiliter modo and must be a route that causes the least damage and prejudice to the servient owner (ter naaster lage en minster schaden); (4) Where there are genuine disputes of fact regarding the most appropriate route for a servitude and its dimensions, these cannot be determined on affidavit and the application must be dismissed.

The court observed that Part C was landlocked and that the Klitsies may well be entitled to a way of necessity (via ex necessitate) over Ms Wulffers' property to access the landlocked property, and that Ms Wulffers appeared in principle to accept this. However, such a case was not properly advanced in the respondents' founding papers. The court also noted that in principle, the width of a servitude road depends on the needs of the enclosed property. The court further observed that compensation proportionate to the advantage gained by the dominant owner and disadvantages suffered by the servient owner is payable when establishing a way of necessity.

This case is significant in South African property law as it reinforces several important principles: (1) the requirements for establishing a way of necessity (via ex necessitate) over landlocked property; (2) the principle that servitudes must be exercised civiliter modo (in a civilized manner) and must follow the route that causes least damage and prejudice to the servient owner (ter naaster lage en minster schaden); (3) the procedural principle that motion proceedings are not suited to resolving disputes of fact, and that applicants who proceed by way of application when there are foreseeable disputes of fact do so at their own peril. The case emphasizes the importance of properly consulting all affected property owners when seeking to register servitudes, and the need for proper evidence when determining the most appropriate route for a servitude.