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Van Rensburg v Coetzee

 

(APPELLATE DIVISION)

 

1978 May 25; 1979 August 24   JANSEN JA, RABIE JA, CORBETT JA, JOUBERT JA and VAN WINSEN AJA

 

Way--Via ex necessitate-When a claim to a way of necessity arises­Without an order of court a claim to a way of necessity does not make registration of such a right possible-Extent of a way of necessity in the case of a farmer-Difference between jus viae precario and jus viae plenum-Quaere: whether jus viae precario at all suitable for the regular use required by today's farming operations-Principle that a servitude is taken “ter naaster lage en minster schade” applicable to way of necessity-Such amounts to way of necessity having to traverse the adjoining land which lies between the landlocked land and the nearest public road-When this rule can be departed from­Rights of way arising on subdivision of land-Such rights arise by tacit agreement-Maxim uter naaster lage en minster schade" applicable in such cases also-Such maxim also applicable to the route and size of the way of necessity-Determination of size of the way of necessity.

Way-Via ex necessitate-Claim for-Compensation-Normally no suggestion of compensation for way of necessity precario-Compensation payable for jus viae plenum-Must be regarded as a kind of expropriation of a right-Approach to determination of compensation-Onus of proof in regard thereto.

Way-Via ex necessitate-Way of necessity granted by order of court­Quaere: whether necessary to effect registration thereof in order to give full effect to the real right-Last exception in reg 73 (2) of Deeds Regulations promulgated in terms of Act 47 of 1937 only applicable to servitude granted simpliciter.

Way-Via ex necessitate-Action for-Jurisdiction-Both Supreme Court and magistrate's court have jurisdiction in such cases-Act 32 of 1944 s 29 (1) (c)-Magistrate's court also competent to order defendant to have way of necessity registered-Court cannot first decide question of the necessity and give judgment thereon and then proceed with the route and size of the way of necessity and the compensation therefor-Onus of proof in regard to the different questions which have to be decided-What should be alleged in plaintiff's particulars of claim.

Servitude-Principle that servitude should be taken "ter naaster lage en minster schade"-Applicable to a right of way of necessity-What it amounts to-When such principle can be departed from.

Maxims-"Ter naaster lage en minster schade"-Such maxim in respect of servitudes applicable to a right of way of necessity- What it amounts to-When it can be departed from.

 

A claim to a way of necessity arises when a piece of land is geographically enclosed and has no way out, or, if a way out is available, it is however inadequate and the position amounts to this that the owner "has no reasonably sufficient access to the public road for himself and his servants to enable him, if he is a farmer, to carry on his farming operations''. Without an order of court this claim does not make the registration of a right of way of necessity in respect of another person's land possible; and, further, before such order is obtained, entry on the other person's land will apparently be unlawful.

 

The extent of the way of necessity must be such that, in the case of a farmer, it is reasonably sufficient to enable him to continue his farming operations. In present day conditions it would accordingly be necessary to make provision for the entry and exit of, eg, agricultural implements and machinery, trucks and ordinary vehicles.

 

There are two kinds of ways of necessity, namely the jus viae precario and the jus viae plenum. The two kinds differ from one another in certain respects. The via precario confers "less rights of enjoyment on the claimant in the sense that he can only claim them in situations of emergency'' and no payment has to be made therefor.

 

The question can be posed whether the conditions in the agricultural industry today are not such that almost daily entrance and exit of motor vehicles is necessary. That could entail, practically speaking, that there would not always be much difference between the rights of enjoyment conferred by the via precario and those by the jus viae plenum. And that poses the question whether the legal concept of the via precario is at all suitable for such regular use.

 

From early times in Holland it was said that a servitude was taken ''ter naaster lage en minster schade'', and this saying is also applicable to the way of necessity. The maxim amounts to this that the way of necessity must traverse that adjoining land which lies between the landlocked land and the nearest public road. This does not mean, however, that this accepted interpretation of the maxim "ter naaster lage en minster schade" lays down an inflexible rule. It is conceivable that the piece of land thereby indicated as that which the way of necessity must traverse is so impassable that it provides no practical way out; on the other hand it is also conceivable that that piece of land would be so detrimentally affected as a result of particular circumstances that another plan would rather have to be made. In these cases the basic rule could probably be departed from and the way of necessity situated over another piece of land. But that does not detract from the maxim laying down how one should proceed in normal cases.

 

It ought now to be confirmed that the case of subdivision, with the consequent creation of rights of way, discussed by Van Leeuwen in Rooms-Hollands Regt 2.21.12, must be construed as the conferring of rights of way by tacit agreement. It follows that, in the absence of such agreement which can be enforced against the present owner of land over which a way-out is claimed, the choice of the piece of land which the way of necessity must traverse must take place according to the principle ''ter naaster lage en minster schade''.

 

In regard to the route which the way of necessity must follow over that piece of land and the width of the road, the rule "ter naaster lage en minster schade" also applies. In principle the size of the way of necessity would depend on the needs of the particular piece of land for which the way of necessity is claimed. But, if an owner claims a way of necessity by way of a jus viae plenum, then essentially he is claiming an ordinary right of way and accordingly, in the absence of agreement or of evidence concerning such needs, the common law rules in respect of the width of the road will apply. In a case where there is not traffic from both directions simultaneously, it would apparently amount to at least eight feet.

 

Normally, there is no suggestion of compensation for the way of necessity precario, but there is for the way of necessity which is acquired as a full right of way (jus viae plenum). Apparently the conferring by the court of a jus viae plenum should be regarded as a kind of expropriation' of a right and the measure laid down by Gluck, namely "the compensation must be in proportion to the advantage gained by the plaintiff and the disadvantages suffered by the defendant", should be viewed in the light thereof. Special damages which the owner suffers as a result of his being partly "expropriated" will also be taken into account.

 

Quaere: Whether it is really necessary, after the court has conferred a way of necessity, to effect registration thereof in order to give full effect to the real right. But it would be more satisfactory, especially for the acquirer of a jus viae plenum, to have a registered right.

 

The last exception in reg 73 (2) of the Deeds Regulations (promulgated in terms of s 10 of Act 47 of 1937) obviously refers to a servitude which was conferred simpliciter, such as a right of way (via) without the route being determined and even without the width of the road being determined.

 

In view of the factual issues which there would probably be in a court case in which a way of necessity is claimed, a claimant would normally have to proceed by way of action. The Supreme Court obviously has jurisdiction to decide such a case, but in addition the magistrate's court also has jurisdiction in terms of s 29 (1) (c) of Act 32 of 1944. "A right of way" in this section includes a right of way of necessity. It is clearly correct, too, that such jurisdiction is not dependent on the value of the right of way. As the magistrate's court can ''determine'' a right of way of necessity ''notwithstanding the provisions of s 46'', it follows that it can also, like the Supreme Court, order the defendant to have the particular way registered.

 

The determination of a right of way of necessity can be naturally divided into two stages: (i) the determination of the necessity of granting a right of way of necessity over the piece of land concerned, and (ii) the determination of the route over the piece of land concerned, as well as the other details of the road, and the compensation payable to the owner of the piece of land concerned. There is, however, no authority for the approach that a court must necessarily first decide the first question and give judgment thereon, and then only to turn to the second stage, and a legal rule of this nature would be in conflict with the general principle that cases must not be tried and decided piecemeal.

 

In respect of question (i) supra, namely the question of necessity, and the piece of land which the way of necessity must traverse, it is clear that the usual onus of proof in civil cases must apply. In regard to stage (ii), if in the case of a claim for a jus viae plenum the claimant wants a wider road than the common law 12 foot road, he will have to show the necessity therefor if the defendant disputes this need. So also must he indicate a suitable route it if it in dispute, unless he falls back on the common law rule that the road must follow the boundary. In practice however it will frequently happen that, unless the defendant indicates an alternative route, the prima facie reasonable choice of a plaintiff will be decisive.

 

In regard to the question of compensation, it must be taken into consideration that the granting of the jus viae plenum amounts essentially to an expropriation of a right, and that the question of the justum pretium must be approached according to the principles applicable thereto. If the plaintiff offers an amount and the defendant is. not satisfied therewith, the defendant will certainly have to submit information which shows that the amount is not justum - unless he wants to run the risk of the court awarding the amount offered - and, if he has suffered any special damages, he will have to prove it. Basically, the rule will in general amount to this that each party must prove those facts upon which he relies for the determination of the value, and the usual civil onus will apply in this connection. But at the end of the case the court will, as best it can, determine a value on the available information.

 

In future it will be advisable for a plaintiff in an action for the acquisition of a jus viae plenum to take the following into account: (1) the particulars of claim must allege the particular necessity, as well as the reason why the way of necessity must traverse the defendant's land; and (2) the width of the road claimed must be stated and the grounds upon which that claim is founded and a particular route should be indicated for the court's consideration as being suitable (without however claiming that route). A particular amount as compensation should be offered for consideration.

 

The decision in the Transvaal Provincial Division in Van Rensburg v Coetzee 1977 (3) SA 130 reversed.

 

Appeal against a decision in the Transvaal Provincial Division (MARGO J and KIRK-COHEN AJ). The facts appear from the judgment of JANSEN JA.

 

D H van Zyl for the appellant: Appellant indeed tenders compensation for the way of necessity which he applies for, although not a fixed amount, because the Court must first determine whether a way of necessity should be granted and if so, along which route. As the value of land differs from place to place, it is impossible to tender a fixed amount now already. In any case the appellant is not praying for a way of necessity, but requires a permanent way registered as servitude. against the title deeds of respondent's property. Beukes v Crous en ‘n Ander 1975 (4) SA at 221A-C. It is common cause: (a) that the parties are the registered owners of their respective properties as described in the particulars of claims; (b) that since 1968 to approximately 1974 the appellant had the right of way over respondent's land at which stage it was closed by respondent by way of a letter addressed to appellant. As a result of this closing of the road the Transvaal Provincial Division of the Supreme Court granted an interdict pendente lite to appellant by way of a rule nisi which was confirmed on 21 February 1975. Van Rensburg v Coetzee 1975 (2) SA 320. The Court a quo correctly found that appellant was in fact entitled to a way of necessity over respondent's land. About the question of subdivision it is so that, when appellant's parents obtained possession of the property in 1936, it was still undivided. Subdivision only took place in 1953. The principle in regard to subdivision of property is in any case not as respondent wants to represent it to the Court. When land is subdivided the front portion must always give the back portion the right of way to a public road. The possibility that De Klerk's land was at one time part of a larger unit together with that of Henry and Danie, is irrelevant. There is certainly hardly any farm in the Republic which was not previously part of a larger unit. One can imagine what chaos will arise if one large farm was divided into 20 portions in the 19^th century and now all 20 new owners of the land must seek the same exit to a public road which the larger unit had once upon a time. The principles in regard to subdivision are clearly set out in the following sources: Hall and Kellaway Servitudes 3^rd ed at 76; Van Leeuwen Roomsch-Hollandsch Regt 2.21.12 (J G Kotze's translation: Simon van Leeuwen 's Commentaries on Roman-Dutch Law vol 1 at 297); Riddin v Quinn 1909 EDC at 378; Matthews v Road Board for Richmond and Others 1967 (3) SA at 247C-G; Van Rensburg v Coetzee 1975 (2) SA at 322D. In the case of subdivision a servitude is not simply vested ex lege. It must still be acquired in one of the ordinary manners. Beukes v Crous en 'n Ander 1975 (4) SA at 220F. Apart from this no evidence at all was adduced by the respondent about the subdivision as such and, if it was his defence, he should most certainly have adduced it.

 

Proceeding from the supposition that appellant has no alternative route over either Henry's or De Klerk's property, while the principle of reservation of right in the case of subdivision is not relevant, the appellant's only alternative is to acquire a via ex necessitate over respondent's property. It is obviously the shortest route with the least expenses to the public road concerned. De Groot Inleidinge 2.35.11; Cadle v Martens (1882) 3 NLR at 84; Wilhelm v Norton 1935 EDL at 168-169. Apart from any other consideration the said road is undoubtedly the most convenient. If respondent argues that he is just as unwilling as Henry or De Klerk to give a way of necessity over his property it would mean that no owner of landlocked land could ever act against any unwilling neighbour. Should there.eg be twenty surrounding farms, each with a suitable road thereon which gives excess to a public road, the person who is landlocked, must select one of those little roads which will be the most convenient in the circumstances and cause the least expenses. It would be ridiculous if he should institute 20 actions and in each action the defence could be that he should rather approach the other neighbour. It speaks for itself that it will be inconvenient to each of the neighbours to give a road over his property. Inconvenience as such is, however, no defence. Should the Court decide that the plaintiff is entitled to a way of necessity in such a case, the Court must grant one and, if the most reasonable possibility is over the land of one of the neighbours concerned a way of necessity must then be granted over such land. In the light of the above­mentioned it is essential (not only convenient) that appellant must have a way of necessity over respondent's property and it is so that he has a right to such way of necessity. For further authority in regard to a way of necessity see: De Groot Inleidinge 2.35.7-8; Voet Commentarius ad Pandectas 8.3.4; Huber Heedendaagsche Rechtsgeleertheyt 2.43.19 (Gane's translation The Jurisprudence of my Time vol 1 at 330); Van der Linden Koopmans Handboek 1.11.2. Appellant has no reasonably sufficient access to the nearest public road which enables him to perform his normal activities (in casu farming). Van Schalkwyk v Du Plessis and Others (1900) 17 SC at 464; Lentz v Mullin 1921 EDL at 270; Neilson v Mahoud 1925 EDL at 33. The way of necessity is essential without absolute need being a requirement. Illing v Woodhouse 1923 NPD at 168. It is not here a case of mere reasonableness or convenience. Trautman NO v Poole 1951 (3) SA at 270E. In so far as there is already an existing road over the property the appellant's proposed way of necessity will cause the least damage to respondent's property. Appellant has no alternative route available. Appellant will suffer damages or prejudice (in regard to his normal farming activities) if a way of necessity is not granted to him. Appellant therefore has a right of way of necessity over respondent's land. The Court a quo erred in finding that appellant should have adduced proof of the location and extent of the servitude of way of necessity claimed. When a way of necessity is claimed the Court must first determine whether the plaintiff is entitled to a way of necessity and only thereafter the Court has the power to determine what the route of such way of necessity should be. Wilhelm v Norton 1935 EDL at 152; Mazista Slate Quarries Ltd v Oosthuizen and Another 1943 TPD at 31; Wynne v Pope 1960 (3) SA at 39G-H; Maree v Raad van Kuratore vir Nasionale Parke 1964 (3) SA 731B-C; Beukes v Crous en 'n Ander 1975 (4) SA at 221D-E. There is in any case evidence of at least two roads over respondent's property, viz one which ran almost right across his land, from appellant's land to the Migdol-Defence public road, which road was subsequently closed by respondent, and the so-called "interdict road" which runs along respondent's boundary from appellant's land to the said public road. This interdict road was pointed out by respondent himself as the road which would cause him the least inconvenience. Should the Court "point out the interdict road as the way of necessity, the situation, route and ambit of the servitude'' (to quote the words of the Court a quo) would be determined or at least determinable. The width of the way of necessity would then be the same as the existing interdict road or at least 8 to 16 feet in accordance with the Roman law principle as contained in D8.3.8 (Gaius in the 7^th book of his commentary on the Edictum Provinciale). See also D8.3.13.2-3 (Iavolenus); D8.3.23.pr (Paulus); D8.1.13 (Pomponius); Peacock v Hodges (1876) 6 Buch at 69, 71; Pietersen v Estate of Gabrielse (1904) 21 SC at 204. Cf Lategan v Union Government 1937 CPD at 202. According to the Roman-Dutch law a width of 12 to 14 feet could have been granted. Van Leeuwen Censura Forensis 2.14.35; Groenewegen De Legibus Abrogatis 8.3.8-13 (Beinart's translation vol 2 at 70-71; Van Leeuwen Heedendaagsche Rooms-Hollandsche Recht 2.21.11 (Kotze's translation vol 1 at 297); Voet Commentarius ad Pandectas 8.3.3. (Gane's translation vol 2 at 466-467); Van der Keessel Praelectiones Juris Hodierni 2.35.5 (Pretoria translation vol 3 at 151). From the evidence it appears that respondent was in any case prepared to allow a width of more than 14 feet. The said road is clearly one whereby the appellant can, with the least inconvenience to the respondent, get onto the public road. De Groot Inleidinge tot de Hollandsche Rechts-Geleerdheid 2.35.11; Van Leeuwen Censura Forensis 2.14.34; Van Leeuwen Heedendaagsche Rooms-Hollandsche Recht 2.21.7 (Kotze's translation vol 1 at 295); Voet Commentarius ad Pandectas 8.3.4 (Gane's translation vol 2 at 467); Van der Keessel Praelectiones Juris Hodierni 2.35.7-8, 11 (Pretoria translation vol 3 at 151). It is not unusual that a way of necessity is granted along the route of an existing old road. Trautman NO v Poole 1951 (3) SA 200. In so far as respondent himself indicated the "interdict road" and appellant took it into use, it could be said that the parties are ad idem about the situation of the road. In a Transvaal decision it was the case and the Court ordered that a specific route should be registered as servitude, without reference to the width thereof. Wiles v Praeg 1952 (I) SA at 890-H. If the parties are not agreed on a route the principle is that the court or authoritative body concerned (eg the Road Board) will indicate it while taking into consideration all the circumstances. Cadle v Martens (1882) 3 NLR at 84. In the light of the above-mentioned it is suggested that sufficient evidence was in· fact placed before the trial Court to have enabled it to indicate the situation of the way of necessity so that further evidence would be unnecessary. The Court a quo erred in not finding that sufficient evidence was adduced before the trial court to have placed the court in a position to decide on compensation. In so far as the value of farm property usually fluctuates from place to place at various parts of such property, it is not possible to determine a value where a route has not yet been specified. Only where a route has been determined a realistic amount can be determined as compensation. The question of compensation is closely related to the route of the way of necessity determined by the Court. The principle is that a fair compensation must be offered for such way of necessity, except when it is precario. Huber Hedendaagse Rechtsgeleertheyt 2.43.19 (Gane's translation vol 1 at 330); Van der Keessel Praelectiones Juris Hodierni 2.35.7-8 (Pretoria translation vol 3 at 151); Neilson v Mahoud 1925 EDL at 33-34; Wilhelm v Norton 1935 EDL at 175-179. The amount of the compensation is not necessarily only related to the value of the land, but other relevant factors are also taken into consideration. Wiles v Praeg 1952 (I) SA at 89C-E. Where in the present case there are various versions of the value of the property concerned, while the possible situation of the way of necessity and other surrounding circumstances may have an influence on the value of the servitude the court should, as in the case of expropriation, give a decision on the evidence which is placed before it. Should this Court find that sufficient evidence was not adduced before the trial court about the situation of the way of necessity and compensation in respect thereof, the case must be remitted to the trial court for the hearing of further evidence in regard thereto. Such procedure will not only be the fairest in the circumstances, especially in regard to the limitation of further litigation and costs, but it will also be in accordance with this Court's powers. Remittal to a road board from a Court of appeal for the hearing of further evidence is not an unusual occurrence. See John Leask v J H and B Pellew (1890) 9 NLR at 76; In re G W Norton (1899) 20 NLR at 146-147; Share v Denny 1935 NPD at 322-323; Lamb and Others v Blarney 1946 NPD at 660; Matthews v Road Board for Richmond and Others 1967 (3) SA at 248. Remittal to a trial court in similar circumstances as those in the present case is also not unusual, especially where the intention is to save time and costs. Martins v De Waal and Others 1963 (3) SA at 791; and cf Botha v Maree en 'n Ander 1964 (1) SA at 173; Berg v Gossyn (1) 1965 (3) SA 702; Beukes v Gous en 'n Ander 1975 (4) SA at 222H. As alternative the Court a quo's finding that a way of necessity should in fact be granted amounts. to a declaration of rights in which case the next logical step is that the case should be referred back to the trial court for the hearing of further evidence. An analogous procedure takes place in the case of an action for the delivery of an account and argument thereof. Doyle and Another v Fleet Motors PE (Pty) Ltd 1971 (3) SA at 763D. See also Schoeman v Rokeby Farming Co (Pty) Ltd 1972 (4) SA at 205-206; and cf Victor Products (SA) (Pty) Ltd v Lateulere Manufacturing (Pty) Ltd 1975 (1) SA at 963; Harvey Tiling Co (Pty) Ltd v Rodomac (Pty) Ltd and Another 1977 (1) SA 316. Section 22 of the Supreme Court Act 59 of 1959 vests in the Court of appeal the power to remit a case for further hearing to the court of first instance or the Court whose judgment is the subject of the appeal, with a direction regarding the taking of further evidence or otherwise, as may appear to be necessary. The requirements for relying on the said section have been complied with. Colman v Dunbar 1933 AD at 161-162; Groenendijk v Tractor and Excavator Spares (Pty) Ltd 1978 (1) SA at 819-820. Even if the deficiency in the evidence was the result of an oversight on the part of appellant's legal representative, the Court would still be at liberty to order that further evidence should be heard. Witschell v Viljoen's Transport 1966 (1) SA 702; Taylor v Savage and Lovemore (Transvaal) (Pty) Ltd 1976 (4) SA 222.

 

J S Rossouw for the respondent: It appears from the evidence that appellant only testified about what would be convenient to him. He did not make the slightest attempt at suggesting to the court of first instance which way, along which route, would place the least burden on the serving tenement. On the other hand there is evidence that both the routes which were discussed before the court of first instance, viz the so-called "concession road" and the so-called "interdict road" cause extreme inconvenience to the serving tenement. We are not concerned here with what would be convenient to the appellant, we are dealing here with what would be the least burdensome to the serving tenement. The appellant was at liberty to have adduced evidence about one or more routes which, according to him, would have placed the slightest burden on the serving tenement. The respondent could have refuted this evidence and could have adduced other evidence about what would have been the least burdensome to the serving tenement. That would have enabled the court of first instance to decide which route would in fact have been the least burdensome to the serving tenement. See Cadle v Martens (1882) 3 NLR 83. If the fact is taken into consideration that we are dealing here with a way of necessity in order to carry on farming, then the extent of such way of necessity is of the utmost importance. The extent of the way of necessity (ie the width thereof) is, therefore, a pertinent aspect which should be indicated by evidence in order to decide on the question which route would be the least burdensome to the serving tenement. After all, a footpath over one portion of the serving tenement may as such cause little inconvenience, but a road on which tractors and trucks must move and on which farming operations must be carried on, may place an untenable burden on the serving tenement. Consequently the situation of the servitude claimed is related to the extent thereof and appellant should have placed evidence about the situation and extent of the way of necessity which he claimed before the court. If evidence of the situation only is adduced, the court is still not in a position to decide whether that situation will be the least burdensome to the serving tenement. A material aspect of the appellant's :case is also the allegation that he is entitled to registration on the servitude. Without the situation and extent of the servitude having been determined by the court, registration cannot be proceeded with. If a permanent servitude is claimed (as in this case) sufficient compensation must be offered. This compensation must be deter­ mined by the court which decides on the granting of the servitude. The amount of the compensation is determined in accordance with the benefits for the dominant tenement as weighed against the disadvantages for the serving tenement. See Wilhelm v Norton 1935 EDL at 178; Neilson v Mahoud 1925 EDL 126; Huber 2.43.19; Hall and .Kelloway Servitudes 3^rd ed at 80. In the present case no evidence at all was placed before the trial court in order to enable it to decide on which amount of compensation was payable by the appellant to the respondent. Indeed, if there is no evidence about the nature and extent of the servitude claimed it is impossible to determine the compensation in respect thereof.

 

Appellant's attitude, in the alternative, is that the case should be remitted to the trial court for further evidence about the situation and extent of the servitude; and the compensation payable for the way of necessity claimed. Appellant placed a number of issues before the trial court. Appellant did not only ask for a declaratory order that he is entitled to a way of necessity. If he prayed for such an order in the Supreme Court, and suceeded therein, he could at any time thereafter have approached the Court again to determine the route and the compensation. Appellant could not ask for a declaratory order in the magistrate's court, and the manner in which he formulated the cause of action, indicates that he wanted to have all the issues decided by the court of first instance. See s 19 of Act 59 of 1959; s 29 of Act 32 of 1944. His necessary that finality is reached in court cases. The Court will only remit a case for further evidence in exceptional circumstances. The party who makes such an application must show that his failure to tender the necessary evidence in the first instance was not due to an oversight. Where such a party had the opportunity at all times of placing the necessary evidence before the trial court, such an application for remittal will not be granted. See Deintje v Gratus and Gratus 1929 AD 1; Lazarus v Knight and Co 1916 CPD 204; Adams v Halling 1932 TPD 115; Colman v Dunbar 1933 AD 141. No explanation is given why evidence was not adduced on all the issues which the appellant placed before the court of first instance. All the issues before the trial court were related to each other, and a decision on the one implies a decision on the other. The judgment of the trial court, in dismissing appellant's claim, amounts to an order of absolution from the instance. See Cloete v Greyling 24 SC 57; Municipality of Christiana v Victor 1908 TS 117; Eldredv Van Aardt and Bell 1924 SWA 79; Becker v Wertheim, Becker and Leveson 1943 (1) PH F34. Apart from the fact that there is not sufficient reason for the remittal of the case to the trial court for further evidence, and that there is any case no such application presently before the Court, it is doubtful whether it can ever be allowed that a case is remitted to the trial court for further evidence where an order of absolution from the instance is given. See Louw v Frayer 15 SC 214; Johns v Wall and Joynt 1916 EDL 229; Viljoen v Richter 1928 OPD 97; Colman v Dunbar (supra at 162-3). Appellant has not proved his case in the Court a quo. It is not that judgment was given for the respondent and appellant has the right, after an order of absolution from the instance has been granted, to approach the Court again with evidence on those issues in respect of which the trial court was not satisfied. To remit the case, therefore, for further evidence, will make an order of absolution from the instance unnecessary. It will have as a result that a plaintiff who did not discharge the onus which rested on him, may always take the case on appeal and ask for its remittal to the trial court in order to hear further evidence. Then an order of absolution is legally untenable.

 

Appellant's attempt to have the present matter heard in separate stages practically amounts to the following: Appellant formulated his cause of action in the magistrate's court in such a manner that the magistrate's court had jurisdiction to hear it. Appellant then obtained a declaratory order that he was entitled to a way of necessity and now he wants the following stages heard by the magistrate's court. That is a circumvention of the Rules, because should appellant be correct in his approach, then it will mean that the magistrate's court in fact has jurisdiction to issue a declaratory order. Remittal to a road board from a Court of appeal for the hearing of further evidence is no authority for the remittal to court of first instance for the hearing of further evidence in the present case. Remittal to road board is made in terms of a statutory provision which specifically authorises such action. No such statutory provision is applicable here. See s 45 Act 35 of 1901 (N). The decided cases quoted by appellant in support of the averment that a remittal to a trial court in circumstances similar to the present is not unusual are not applicable to the facts of the present case. An application for remittal for further evidence must take place by way of a notice of motion and the grounds on which the court is requested to remit the case for further evidence must be fully set out. In the present case we are not dealing only with a mere oversight on the part of the legal representatives of the appellant to place sufficient evidence before the trial court. Purely as example it appears that appellant's legal representatives right from the outset decided not to adduce evidence about, inter alia, the compensation payable because notice was never given to the respondent of any expert evidence on this aspect. The remittal for further evidence after absolution from the instance has been ordered will not necessarily or obviously result in the saving of costs.

 

Van Zyl in reply.

 

Cur adv vult.

 

Postea (August 24).

 

JANSEN JA: The appellant, a farmer and hereinafter called the plaintiff, has been the registered owner of "certain remaining portion of portion 2 of the farm Stroppan no 247" in the district of Schweizer-Reneke since 31 July 1951. The farm is situate between two public roads, the Lusasa road to the north and the Migdal-Defence road to the south, but it does not adjoin any of these roads. From plaintiff's farm these roads can, therefore, only be reached over the property of other persons. On plaintiff's southern boundary lies the farm "Mispah" of which the respondent (hereinafter called the defendant) has been the registered owner ·since 12 October 1953 and through which farm the Migdol­Defence road runs. In terms of an agreement with the defendant plaintiff used a road over Mispah, passing near the homestead to reach the Migdal-Defence road from 1968 to August 1974. (This road is called "the concession road" in the papers.) In August 1974 defendant prohibited plaintiff from using this road and he closed the road. Plaintiff then made a temporary arrangement with his brother, Henry van Rensburg, to travel over the latter's farm - an adjoining portion of Stroppan, situate on the eastern boundary of plaintiff's farm - in order to reach a private road which runs over the farms of A Pienaar and R Pienaar to the Migdol-Defence road. Henry van Rensburg terminated this arrangement, however, in November 1974. In the meantime in October 1974 plaintiff also instituted an action for a way of necessity in the magistrate's court at Schweizer-Rekene against the defendant and in addition he applied for an interdict pendente lite in the Transvaal Provincial Division. A rule nisi which required defendant to show cause

 

''why the respondent (defendant) ·shall now allow applicant (plaintiff)to acquire a way of necessity from applicant's (plaintiff's) farm over respondent's (defendant's) farm ... pending the result of the action ... in the magistrate's court,"

 

was subsequently confirmed by FRANKLIN J. The decision is fully reported: Van Rensburg v Coetzee 1975 (2) SA 320 (T).

 

In terms of this order plaintiff now again uses a road over Mispah to the Migdal-Defence road, but along a route other than that of the previous concession road. The new road (called the "interdict road" during the trial) runs from a point where the eastern boundary of plaintiff's farm ends at the northern boundary of Mispah, along the northern boundary eastward up to Mispah's eastern boundary where it turns south to run along the eastern boundary up to the Migdol-Defence road. The interdict road - during the inspection in loco at the beginning of the case in the magistrate's court found to be 2 km in length - is obviously longer than the concession road: this road ran from the same place on plaintiff's land, but in a straight line southwards, through Mispah to the Migdol-Defence road.

 

It is remarkable that the rule nisi, as confirmed, did not indicate any specific route over Mispah. Indeed, there are several decided cases which indicate that the plaintiff would not have been entitled, pendente lite, to pray for an order in respect of a specific route. (Cf Mazista Slate Quarries Ltd v Oosihuizen and Another 1943 TPD 28 at 31 et seq; Botha v Maree en 'n Ander 1964 (1) SA 168 (O) at 171A-E; Berg v Gossyn (1) 1965 (3) SA 702 (O) at 703H, read with Berg v Gossyn (2) 1965 (3) SA 707 (O) at 708E-H; Maree v Raad van Kuratore vir Nasionale Parke 1964 (3) SA 727 (O)-at 731G). How it came about that as a result of the order of Court in the present case the interdict road was placed along the route explained above, does not expressly appear, but it can be accepted that it took place as a result of an agreement between the parties and that the longer route along the northern and eastern boundaries of Mispah was indicated by the defendant, instead of the shorter, direct route of the concession road which would probably have suited the plaintiff much better.

 

In the meantime the action in the magistrate's court took its ordinary course with, inter alia, the exchange of pleadings and further particulars: It must be mentioned that the plaintiff originally, with the issue of sum­ mons, claimed the following:

 

"(a) That the honourable court issues an order against the defendant whereby the defendant is compelled to register in the Deeds Office a permanent servitude of right of way ex necessitate over the property, as described in para 2 of the summons, in favour of plaintiff's property as described in para 1 of the summons, which road shall run from last-mentioned property over first-mentioned property at the same place where the road which was used by plaintiff until August 1974 ran or such other place as the parties may agree upon, against payment by plaintiff –

 

(i)         of an amount of compensation to the defendant as deter­ mined by the honourable court,

 

(ii)        of all costs in connection with the registration of such a servitude in the Deeds Office;

 

(b)       alternative relief,

 

(c)        costs of the suit."

 

The defendant took exception to the particulars of claim, inter alia, on the ground thereof that

 

"plaintiff claims a via necessitate along a specific route. Such claim is legally untenable".

 

Before the hearing of the exception plaintiff, however asked for an amendment, which, inter alia, brought about that his prayers were altered to the following:

 

(a)       That this honourable court issues an order which compels defendant to cause a permanent servitude of way of necessity to be registered in the Deeds Office over such portion of defendant's aforesaid property, as this honourable court may determine, in favour of plaintiff's aforesaid property, against a payment by plaintiff:

 

(i)         of an amount of compensation to defendant as determined by this honourable court;

 

(ii)        of all the costs in connection with the registration of such servitude in the Deeds Office.

 

(b)       Costs of the suit.

 

(c)        Alternative relief."

 

Obviously plaintiff felt himself compelled to ask for this amendment in the light of what was said in Wilhelm v Norton 1935 EDL 143 at 152: "………."

 

This decision has already stood for over 40 years and has never been doubted. It is also the basis of the decided cases in regard to the order predente lite mentioned above, and it was also accepted in a case like Wynne v Pope 1960 (3) SA 37 (C) at 39G-H.

 

The case was proceeded with on the amended pleadings. At the hearing both parties testified and also called witnesses. The magistrate decided in favour of defendant and he "dismissed" the claim with costs (including the costs in regard to the order pendente lite in the Supreme Court). Its main consideration was that because plaintiff already had "a reasonable access to a public road" (so it found), he was not entitled to a way of necessity. In the alternative he, however, says:

 

"Should the court have erred in finding that plaintiff was not entitled to a way of necessity, the court is still of opinion that plaintiff's claim cannot be granted. The object of a judgment is to bring about finality between the parties in regard to their dispute: Herbstein, Baker and Aaron Civil Practice in the Magistrates' Courts in SA at 160.

 

Should the Court find that the plaintiff is entitled to a way of necessity, then at what just compensation? There is no evidence about the fair market value of the land concerned (which a willing and well-informed purchaser would be prepared to pay to a willing and well-informed seller and which the latter would be prepared to accept). The court cannot now deliver judgment and say: 'Plaintiff is entitled to a way of necessity; adduce evidence now about the value of that way of necessity'. That brings no finality to the dispute between the parties. In such a case the claim should still have to be dismissed ... "

 

On appeal the Provincial Division found that the magistrate had erred in coming to the conclusion that the plaintiff was not entitled to a way of necessity; but notwithstanding that the Court was of opinion that absolution from the instance, with costs, was the correct result, and the Court dismissed the appeal. The reason for the dismissal appears from the following quotation from the judgment (at 134H of the report: 1977 (3) SA 130 (T):

 

"In my opinion the evidence. on the said issues, except the first, was insufficient. There was a lack of acceptable evidence regarding the location or extent of the via necessitatis claimed, taking into account that the least burden on the servient property must be caused. There was also no acceptable evidence before the court to put the court in a position to decide on compensation."

 

The plaintiff now appeals to this Court. Before the issues and submissions by the advocates are considered, it is however desirable first to consider certain aspects of the legal position in regard to ways of necessity. In this regard the instructive article of C G van der Merwe and G F Lubbe in 1977 THRHR at 111-125 can in general be consulted, as well as C G van der Merwe's Sakereg at 343-349.

 

1.         Origin of the claim to a way of necessity

 

It is clear that if a piece of land has no way out to a public road, if it is as Simon van Leeuwen Rooms-Hollands Regt 2.21.7 calls it, "blokland", "landlocked land" a claim to a way of necessity arises. According to Van Leeuwen this is so because ''there may not be 'landlocked land'''; Ulrik Huber on the other hand sees it differently - it takes place "to save agriculture" (Hedendaagse Rechtsgeleertheyt 2.43.19). It will depend on the premise from which one proceeds how great the necessity for a way-out must be, and also the nature thereof, to cause a claim for a way of necessity to arise. The legal concept of the way of necessity is also known in the Dutch (BW 715-8) and French (CC 682-8) law, and Van Apeldoorn (1937 WPNR 3512 and 3513), in his discussion of a way of necessity in these systems, indicates that a distinction must be made between what he calls the "individualistisch-amoreele" and the "sociaal­ethische'' views. He supports the latter which, according to him, includes "that the general interests must receive preference over the individual interests; that the owner must, therefore, endure all the limitations which is demanded by the general interests".

 

He finds a starting point with Huber, the more modern decisions in the Netherlands and in the French law. On analysis of our judgments Van der Merwe and Lubbe (at 118-9) come to the conclusion that

 

"a way of necessity shall be granted in cases of geographically landlocked land, but in addition hereto a way of neccesity is also indicated where the available alternative roads do not satisfy the economical requirements of a piece of land.''

 

According to them

 

"a conciliation between an individualistic and a more socialistic approach is clearly discernible in the South African judgments''

(at 116).

 

It is, however, not necessary for the purposes of the present case to decide on the fundamental approach. It is sufficient to accept that a claim to a way of necessity arises if a piece of land is geographically land­ locked and has no way-out, or if a way-out is in fact available it is, however, inadequate and the position amounts to this that the owner

".........."

 

(Lentz v Mullin 1921 EDC 268 at 270; cf also the judgment of the Court a quo at 134C). The colourless word "claim" is purposely used in this discussion. In the present case it is unnecessary to decide on the juridical nature therefore. Attention can only be directed to the fact that without an order of court this claim does not make the registration of a right of way of necessity in respect of another person's land possible; and, further, before such order is obtained, entry on the other person's land will apparently be unlawful. (Cf Neilson v Mahoud 1925 EDL 26 at 34.)

 

2.         The nature of the way of necessity to which the claim refers

 

It follows from the quotation above from Lentz v Mullin loc cit that the extent of the way of necessity must be such, that in the case of a farmer, it is reasonably sufficient to continue his farming operations. In present day conditions it would accordingly be necessary to make provision for the entry and exit of, eg, agricultural implements and machinery,

 

trucks and ordinary vehicles. But there is also another aspect which must be kept in mind.

 

Johannes Voet ad Pandectas 8.3.4 directs attention thereto that, in analogy to the position in Roman law regarding graves (D11.7.12.pr) the following is applicable to all enclosed pieces of land: ".........."

 

The impression which is created here, is that the election must really be made by the defendant, and the passage was also apparently understood like that in Neilson v Mahoud 1925 EDL 26 at 33-34:

 

“ ...[in this case the party who claimed the way of necessity]… “

 

That two types of ways of necessity exist, viz the jus viae precario and the jus viae plenum was accepted in Wilhelm v Norton (supra at 175-179) and succeeding cases (of which Beukes v Crous en 'n Ander 1975 (4) SA 215 (NC) at 221-2 is the latest). The two types differ in certain respects from each other. The via precario confers

 

"less rights of enjoyment on the claimant in the sense that he can only claim them in situations of emergency"

 

(Van der Merwe and Lubbe at 114) and no payment has to be made therefor. Schorer ad Gr 2.35.8 - quoted with approval in Wilhelm v Norton (supra at 177) - formulates the position as follows:

 

"A person who has no free entrance to his house or land or way-out therefrom, is granted such a way over his neighbour's property, provided a reasonable price is paid; at least a way cannot be refused to him which he can utilise in times of emergency; but with the least encumbrance to his neighbour. This way of necessity distinguishes itself particularly from other ways in that it can be closed and cultivated by the owner of the servient tenement, but subject to the provision that on request, in the case of emergency, he must open it and make it serviceable. Voet de Servit praed rust n4 (Voet-8.3.4)"

(Translation J E Austen (1784)). In fact a via precario was also granted in Wilhelm v Norton (supra).

 

The question can be. posed whether the conditions in the agricultural industry today are not such that almost daily entrance and exit of motor vehicles are necessary. That could entail, practically speaking, that there would not always be much difference between the rights of enjoyment conferred by the via precario and those by the jus via plenum. And that poses the question whether the legal concept of the via precario is at all suitable for such regular use. Further it must also be mentioned that although Voet apparently allows the defendant to grant a via precario only, it was accepted in Wilhelm v Norton that the plaintiff can insist on a jus viae plenum against a justum pretium. Our older sources also leave no doubt about this. According to, eg, Christianaeus (1553-1631) Leges Municipales 14.51.2 and Maynard (deceased in 1607) Decisiones Novae Tholosanae 4.59.3 an owner can be compelled to grant a via against payment. (As regards the German writers, cf Gluck para 628; Windscheid­Kipp para 212.4.)

 

3.         Determination of the piece of land which the way of necessity must traverse

 

From early times in Holland it was said that a servitude was taken

 

"ter naaster lage en minster schaden" so we find in Van Leeuwen op cit 2.21.6, although there are variations according to the edition - and this saying is also applicable to the way of necessity (cf Van Leeuwen op cit 2.21.7. In Wilhelm v Norton (supra at 168-9) it was decided on authority of the precedents quoted there that the maxim amounts to this that the way of necessity must traverse that adjoining land which lies between the landlocked land and the nearest public road: ".........."

 

This is also the meaning which Van Apeldoorn attaches to the maxim (3513 WPNR 200, and the authorities quoted there) and so also Van der Merwe and Lubbe at 122-3 and Van der Merwe 1977 Annual Survey at 262.

 

It follows that the passage from Hall and Kellaway Servitudes 3^rd ed at 80 quoted by the Court a quo (at 134F) does not reflect the rule correctly. This does not mean, however, that this accepted interpretation of the maxim "ter naaster lage en minster schade" lays down an inflexible rule. It is conceivable that the piece of land thereby indicated as that which the way of necessity must traverse is so impassable that it provides no practical way out; on the other hand it is also conceivable that that piece of land would be so detrimentally affected as a result of particular circumstances that another plan would rather have to be made. In these cases the basic rule could probably be departed from and the way of necessity located over another piece of land. But that does not detract from the maxim which lays down the manner in which one should proceed in normal cases.

 

In Wilhelm v Norton (supra) in addition to the basic rule also another rule was applied, which in the circumstances led to the same result (at 169-171). This other rule is based on Van Leeuwen (supra at 2.21.12), which reads as follows (edition 1780):

 

"So when a piece of land is divided in two or more portions the one at the back must retain its way-out over the front portion, even if nothing is said about it: because the division of the land cannot thrust upon neighbours a servitude. Arg 1.23. in fin ff de servit Rusticor praed junct 1.66. ff de contr empt. Where it is so situated that it in front has a way-out by land and at the back a way-out by water the alienated portion will have to be satisfied with the way-out by water. And what has been said in this regard is equally applicable where such person sold the front portion and kept the back portion. arg 1.23. in fin ff de servit Rust praed junct 1.22 ff commun praedior.

 

So also a piece of land, which has a servitude of way-out over another piece of land, may be divided in so many parts as are necessary: and each such part acquires a part of the same way-out, the one furthest back over the one in front of it, etc per d 1.23. § 3.ff eod Bart Caepoll de Servit Rusticor praed cap. 1. num 12. and cap 3. num 7."

 

Van Leeuwen relies on D8.3.23.3 and D18.1.66, but none of these passages deals directly with the case mentioned by Van Leeuwen in the first paragraph. The first paragraph in fact deals with a case mentioned by Van Leeuwen in the second paragraph, viz the case of the subdivision of the dominant tenement and the effect thereof on the existing servitude; the latter deals with the case where the seller of the dominant tenement suppressed the existence of the servitude and the purchaser through ignorance loses it by prescription. The case dealt with in D8.3.23.3 served before the Court in eg Louw v Louw 1921 CPD 320. The farm Matjiesfontein was ''……….''

 

Matjiesfontein was subdivided in 1895, but with the subdivision no mention was made of this right. In 1921 a dispute arose between two legal successors of the original owners of two of the subdivisions. The owner of one of the subdivisions claimed damages in the magistrate's court from the owner of the other portion because the latter drove stock over the former's land. On appeal the magistrate's finding that defendant, as owner of portion of Matjiesfontein, had the right to drive cattle over the portion in between the other portions of Matjiesfontein which belonged to plaintiff in order to exercise the original servitude in respect of Oorlogskloof and Kranskloof, was upheld. The claim for damages, therefore, failed. KOTZE JP directly relied on D8.3.23.

 

Van Leeuwen's principle regarding a way-out to a public road is, therefore, only an analogous application of D8.3.23.3. It is also strange that apparently none of the other known Roman-Dutch writers says anything in this regard. But be that as it may, Van Leeuwen's principle has already been acknowledged in some of our decided cases. In addition to Wilhelm v Norton (supra at 169 et seq) Riddin v Quinn 1909 EDC 375 at 377-8 and the remark of POTGIETER J in Maree v Raad van Kuratore vir Nasionale Parke 1964 (3) SA 727 (O) at 732B may be mentioned. (Cf also Peacock v Hodges (1876) 6 Buch 65 at 71.) That this principle can have undesirable results appears from the remarks of KENNEDY J in Matthews v Road Board for the District of Richmond and Others 1967 (3) SA 244 (N) at 247F-H: ".........."

 

To this can also be added that a consistent application of this principle can possibly bring about that succeeding subdivisions of land must be taken back to their origin - something which may make it necessary to investigate the position for more than a hundred years back with all the complications of possible prescription added thereto.

 

It is, however, remarkable that, except in Maree's case where the position is obscure, in these cases the owner which affected the subdivision and, eg, kept a piece of land over which a way-out could run, at the time of the particular proceedings was still the owner of that piece of land. In Beukes v Crous en 'n Ander 1975 (4) SA 215 (NC) at 220A-H the opinion is expressed in respect of Van Leeuwen op cit 2.21.12 that subdivision does not create a servitude ex lege and the possibility is mentioned that the appropriate legal principle is:

 

"a tacit grant (cf, by analogy, Erasmus v Du Toit 1910 TPD 1037 at 1047) or stipulation in deductio from the full right of ownership which is transferred."

 

This view is also shared by Van der Merwe and Lubbe (op cit at 123):

 

"In fact a tacit servitude of way exists in such a case in respect of the front portion. This servitude can at any time be converted to an express servitude by registration. We are strictly, therefore, not dealing here with the granting of a way of necessity.''

 

The result of this interpretation of Van Leeuwen is formulated as follows in Beukes v Crous (supra at 220G-H):

 

''The original owner of the landlocked land, created by virtue of the sub­division could probably claim registration of a servitude of via simpliciter (ie not along a definite route).

 

The next question is whether an unregistered servitude is binding upon successors titulo oneroso of the owner of the servient tenement.

 

Here the consensus seems to be in the affirmative, provided he has knowledge of the servitude; otherwise no. Cf Nathan, Common Law, vol 1, para 689 at 493-4; Wille Principles 6^th ed at 224.''

 

It is remarkable that this view of Van Leeuwen's principle regarding subdivision, viz that there may be a question of a tacit granting of a right of way reaches a result which to some extent coincides with the English law "right of way of necessity". Halsbury Laws of England 4^th ed vol 14 para 152 et seq deals with it under the heading "Rights of Way arising by Implication of Law". In para 153 the following is stated:

"………."

 

Cf also 25 Am Jur 2d "Easements" para 34 et seq.

 

In my opinion it ought now to be confirmed that the case of subdivision, with the consequent creation of rights of way, discussed by Van Leeuwen in Rooms-Hollands Regt 2.21.12, must be construed as the conferring of rights of way by tacit agreement. It follows that, in the absence of such agreement which can be enforced against the present owner of land over which a way-out is claimed, the choice of the piece of land which the way of necessity must traverse must take place according to the principle "ter naaster lage en minster schade", as explained above.

 

4.         Determination of the route along which the way of necessity on that piece must run and the width of the road

 

Here the rule "ter naaster lage en minster schade" also applies. Of the application thereof in the case of servitudes in general Van Leeuwen gives an example, viz that the servitude must be taken "along one or the other side of the land" (op cit 2.21.6), ie not right through the land but along the boundary. Basically there is a weighing up of interests here and it must be taken into account that the pieces of land which Van Leeuwen had in mind would have been much smaller than those which we are dealing with.

 

In practice the question of the route has, however, not yet caused us difficulties. The reported cases were apparently mostly concerned with the use of one or other existing road as a way of necessity, ie a road with an already determined route. So also in the present case there is only mention of two routes: either the concession road or the interdict road.

 

The width of the road has also not really caused difficulty in our litigation, presumably because the dispute was really in respect of the use of a particular road and the width thereof had already been determined by use. In principle the size of the way of necessity would depend on the needs of the particular piece of land for which the way of necessity is claimed. But, if an owner claims a way of necessity by way of a jus viae plenum, then in my opinion he is essentially claiming an ordinary right of way and accordingly, in the absence of agreement or of evidence concerning such needs, the common law rules in respect of the width of the road will apply. In a case where there is not traffic from both directions simultaneously, it would apparently amount to at least eight feet (cf, inter alia, Van Leeuwen Censura Forensis Pars Prima 2.14.35; Groenewegen De Legibus Abrogatis Ad D8.3.13; Voet Ad Pandectas 8.3.3; Schorer ad Gr 2.35.8; Van der Keessel Praelectiones ad Gr 2.35.5).

 

5.         Determination of the compensation (if any) payable to the owner of the piece of land over which the way of necessity will run

 

Normally there is no suggestion of compensation for a way of necessity precario, but there is for the way of necessity which is acquired as a full right of way a jus viae plenum). It is remarkable that in this regard Voet talks of a justum pretium, a just price. Against this the BGB (para 917, read with 912 and 913) sees an annuity while the BW refers to damages:

 

"a compensation equated with the damage caused thereby (BW para 715)".

 

Gluck 7.1.628 is apparently quoted with approval in Wilhelm v Norton at 176: "………."

 

Apparently the conferring by the court of a jus viae plenum should be regarded as a kind of expropriation of a right and the measure laid down by Gluck should be viewed in the light thereof. Special damages which the owner suffers as a result of his being partly "expropriated" will also be taken into account.

 

6.         Registration of the right to a way of necessity

 

It is unnecessary to determine whether it is really necessary, after the court has conferred a way of necessity, to effect registration thereof in order to give full effect to the real right. But it would be more satisfactory, especially for the acquirer of a just viae plenum to have a registered right. In this regard it should be kept in mind that normally a diagram of the route will be attached in order to make it acceptable for registration. Deeds regulation 73 (2) (in terms of s 10 of Act 47 of 1937) provides:

 

'' A diagram shall also be annexed … to deeds creating or defining servitudes and real rights whether created or defined by the parties thereto or by order of the Court or a Water Court: Provided that a servitude feature of uniform width, or a servitude feature at a specified distance from and parallel to a surveyed line shown on a registered diagram extending along the entire length of such surveyed line, may be registered by description without supporting diagram: .......... .

 

Provided further that nothing in this sub-regulation shall exclude the registration of a servitude in general terms."

 

The last exception obviously refers to a servitude which was conferred simpliciter, such as a right of way (via) without the route being determined and even without the width of the road being determined.

 

7.         Procedure

 

If the question of the acquisition of a way of necessity is not agreed upon by the parties, the owner who requires a way of necessity for his piece of land will have to go to court. In view of the factual issues which will then probably exist, he would normally have to proceed by way of action. The Supreme Court obviously has jurisdiction to decide such a case, but in addition the magistrate's court also has jurisdiction. Section 29 of Act 32 of 1944 provides, inter alia:

 

"(l) Subject to the provisions of this Act, the court, in respect of causes of action, shall have jurisdiction in - ........... .

 

(c) actions for the determination of a right of way, notwithstanding the provisions of s 46;            ''

 

(Section 46 enumerates matters which fall outside the jurisdiction of the court.) "A right of way" in this section includes a right of way of necessity. (Martins v De Waal and Others 1963 (3) SA 787 (T) at 789F-H; Wiles v Praeg 1952 (1) SA 87 (T) at 90.) It is also obviously correct as Jones and Buckle Civil Practice in the Magistrate's Courts 6^th ed at 62 apparently suggests that such jurisdiction is not dependent on the value of the right of way. As the magistrate's court can "determine" a right of way of necessity "notwithstanding the provisions of s 46", it follows that it can also, like the Supreme Court, order the defendant to have the particular way registered.

 

It is clear that the determination of a right of way of necessity can be naturally divided into two stages: (i) the determination of the necessity of granting a right of way of necessity over the piece of land concerned, and (ii) the determination of the route over the piece of land concerned, as well as the other details of the road, and the compensation payable to the owner of the piece of land concerned. It was submitted that this natural division legally brings about that the court must necessarily decide the first question first and must give judgment thereon and must then only proceed to the second stage. There was, however, no authority for this approach mentioned to us and a legal rule of this nature would be in conflict with the general principle that cases must not be tried and decided piecemeal. (No reliance was placed on Rule 29 (4) - previously Rule 28 (4) - of the Magistrates' Courts Rules and the operation thereof need not be discussed now.) In respect of the first question mentioned above, viz the question of necessity, and the piece of land which the way of necessity must traverse, it is clear that the usual onus of proof in civil cases must apply. The position as regards the second stage is, however, not so clear.

 

If in the case of a claim to a jus viae plenum the claimant wants a wider road than the common law 12 foot road, he will have to show the necessity therefor if the defendant disputes the need. So also must he indicate a suitable route if it is in dispute, unless he falls back on the common law rule that the road must follow the boundary. In practice however it will frequently happen that, unless the defendant indicates an alternative route, the prima facie reasonable choice of the plaintiff will be decisive. In regard to the question of compensation, it must be taken into consideration that the granting of a jus viae plenum virtually amounts to an expropriation of a right, and that the question of justum pretium must be approached according to the principles applicable thereto. If the plaintiff offers an amount and the defendant is not satisfied therewith, the defendant will certainly have to submit information which shows that the amount is not justum - unless he wants to run the risk of the court awarding the amount offered - and, if he has suffered any special damages, he will have to prove it. Basically the rule will in general amount to this, that each party must prove those facts upon which he relies for the determination of the value, and the usual civil onus will apply in this connection. But at the end of the case the court will, as best it can, determine a value on the available information. (Cf, eg, Turkstra Ltd v Richards 1926 TPD 276.)

 

On the ground of the questions already discussed in this judgment it will be advisable for a plaintiff in an action for the acquisition of a jus viae plenum to take the following into account:

 

(1)       the particulars of claim must allege the particular necessity, as well as the reason why the way of necessity must traverse the defendant's land (eg that that land lies between plaintiff's land and the nearest public road);

 

(2)       the width of the road claimed must be stated and the grounds upon which that claim is founded and a particular route should be indicated for the court's consideration as being suitable (without however claiming that route). A particular amount as compensation should be offered for consideration.

 

Keeping the aforementioned in mind attention can now again be directed towards the present case. In various respects the procedure described above was not followed, but plaintiff cannot be blamed too much for that, because up to now there was no meaningful indication in our judgments on how precisely a plaintiff has to proceed. But to this I return again.

 

In view of the decision of the Court a quo it is not now denied that plaintiff is entitled to a way of necessity over defendant's land to the Migdol-Defence road. It is, however, necessary to make a few remarks in this regard. The evidence indicates that defendant's land is situated between plaintiff's land and the nearest public road, and that the way of necessity must naturally traverse Mispah. The possibility of a way-out to the north of the Lusasa road over the land of a certain De Klerk was correctly left out of consideration by the Court a quo, because the evidence indicates that, should such a right exist, it would in any case be insufficient for farming operations. But attention must also be directed to another earlier contention by the defendant. He submitted that on the ground of a previous subdivision the way-out should traverse De Klerk's land. Obviously the passage from Van Leeuwen, discussed above, was the basis hereof. The defendant did however not endeavour to support his submission by particulars from the Deeds Office, but abided by the evidence given by some of the witnesses. It appears that in the early thirties "Stroppan" was 3000 morgen in extent and the Lusasa road traversed it. The owner at that time, a certain Stephen Hugo, who had his homestead to the north of the Lusasa road, subdivided it into three portions of 1000 morgen each. The southern portion he sold to plaintiff's father in 1936 and, apparently thereafter, the northern portion to a certain Faan de Klerk and the western portion to a certain Smith. As a result of this subdivision the position was, therefore, that the Lusasa road ran across Faan de Klerk's land, that portion of Faan de Klerk's land was situated between the land of plaintiff's father and that road while on the southern side a portion of the farm Mispah, which then belonged to a certain McGuire and Hallett was situated between the land of plaintiff's father and the Migdol-Defence road. In 1946 defendant came to the farm Mispah and since then he resides there. In 1951 the land of plaintiff's father was subdivided and plaintiff received the eastern half and Henry van Rensburg the western half. There were therefore two sub­divisions in respect of which the tacit granting of a right of way to plaintiff's piece of land could have become relevant: in 1936, when the sub­division by Stephen Hugo took place, and the subdivision between plaintiff and his brother, Henry van Rensburg. From the evidence it appears clearly enough that in 1936 no effect was given to any right of way over Faan de Klerk's portion of Stroppan. No such right was registered and there is no evidence that Faan de Klerk, who presumably became owner titulo oneroso, knew of the existence of such right, still less F J de Klerk who succeeded him relatively recently, and who testified. It further also appears to be clear that the Van Rensburgs never travelled over Faan de Klerk's land. The evidence is that the Van Rensburgs since the purchase of portion of Stroppan in 1936 all along reached the land from the Migdol-Defence road and travelled over Mispah. Plaintiff's parents apparently resided somewhere along the Migdol-Defence road on another farm and the natural and convenient access to Stroppan for the Van Rensburgs would have traversed Mispah. If a right of way ever existed by implication over De Klerk's land to the Lusasa road it has probably been extinguished by prescription. The subdivision of Stroppan between plaintiff and his brother also takes the case no further: Henry's portion also had no way-out. With these difficulties in mind the Court a quo, in my opinion, correctly came to the conclusion that plaintiff's piece of land had no sufficient way-out. Defendant relied on a full right of way over De Klerk's land and in the light of the evidence on behalf of the plaintiff there was at least an onus of rebuttal on him which he did not discharge.

 

Once it is accepted that plaintiff is entitled to acquire a jus viae plenum over Mispah (the defendant's land), the question arises whether an order of absolution from the instance granted by both the trial court and the Court a quo was appropriate. Both Courts were of opinion that the evidence about the route, width and compensation was insufficient for any other order; the Court a quo in addition proceeded from the supposition that it could not merely issue an order on the existence of a right of a way of necessity because it was of opinion that the trial court had no jurisdiction to make such an order. It is, however, unnecessary to express an opinion about the latter question as it will appear that it was incorrectly decided that the evidence was insufficient.

 

There are indications that both parties in the magistrate's court could have thought that the trial should have taken place in at least two stages and that they directed their evidence to the question whether a right to a jus viae plenum had actually arisen. But now the plaintiff avers that sufficient relevant evidence had in any case been adduced to make a decision on the other questions possible. For safety sake he, however, requests, in the alternative, that if the evidence in fact appears to be insufficient the case should be remitted to the trial court to hear further evidence in this regard. Possibly this would have been just, in view of the possible joint error in regard to procedure in the trial court, to have followed this procedure if the defendant also desired it. But the defendant opposed it and persists in his contention that the evidence is completely insufficient and that the plaintiff can for that reason not succeed. It is also remarkable that when plaintiff's counsel touched on these questions with the defendant in the witness-box, the defendant was not at all helpful but rather evasive. The off er by plaintiff to pay compensation which should be determined by the court was in the pleadings already regarded as not bona fide by the defendant. In view of the unobliging attitude of the defendant, he cannot be aggrieved if this Court should now leave the possibility of remittal out of consideration should it come to the conclusion that there is in fact available evidence on which a conclusion can be reached.

 

The plaintiff testified that he would be satisfied with either the concession road or the interdict road. As the interdict road runs along the northern and eastern boundaries of Mispah, it can, in the absence of evidence by the defendant thereon, be accepted that it would be the least cumbersome route. Further, it is clear that in the absence of evidence in regard thereto the width of the road could be determined according to the legal rule at at least eight feet. There is, however, evidence in the pre­ sent case that when negotiations about the concession road took place, the plaintiff was prepared to accept at least 14 feet and defendant was prepared to give it. On this ground it can be accepted that it would be reasonable to grant a road of approximately 14 feet, and to determine it at 4,5 metre. The length of the interdict road is 2 km. It follows that the extent of the road would be 0,9 hectare, ie 1,05 morgen. Plaintiff testified that in the area land was on the market at R320-R350 per morgen and that he himself would be prepared to pay R400-R450 for good land. This evidence was not disputed in cross-examination. Although the defendant said that "money cannot buy that land", referring to that taken up by the interdict road, he conceded that he had not yet heard "that land in that area was sold for more than R400 per morgen". In the particular circumstances of the present case it appears to me to be reasonable to determine a justum pretium for the jus viae plenum primarily on the basis of the area taken up by the road at R450 per morgen. The area was stated above to be 1,05 morgen, and at R450 per morgen it amounts to R472,50. In cross-examination the defendant averred that the interdict road had caused him R8 800 damages, but it is obviously a completely excessive claim which is not even based on an understandable basis of calculation. In my opinion the defendant has not adduced evidence for the granting of more compensation than that already mentioned. His claim for special damages is excessive and vague and must be left out of consideration. In the particular circumstances and on the available particulars R472,50 appears to be reasonable compensation for the way of necessity.

 

From the afore-mentioned it appears that the trial court should have found that plaintiff was entitled to a way of necessity (jus viae plenum) over defendant's land and that there was sufficient particulars before the court to determine the route and width thereof, as well as just compensation therefor. It follows that plaintiff must succeed in this Court as he should have succeeded in the Court a quo and, in the first instance in the trial court. Unless he could be blamed for not bringing more comprehensive evidence about the description of the road, it will follow that plaintiff must receive all his costs in all three courts. But it is difficult to see why plaintiff should be penalised in this regard. The applicable procedure was at the time of the original trial uncertain and the defendant with his exception also helped to guide the proceedings in a particular direction. Notwithstanding this the plaintiff adduced certain relevant evidence; and when defendant was cross-examined in this regard ·he was completely disobliging. The defendant did also not out of his own testify about these matters or attempted to adduce evidence about it. He does not rely on any error in this regard and he opposes an application for remittal for further evidence. That plaintiff could indeed have been more comprehensive with his evidence does not, in my opinion, in the circumstances, justify the Court in depriving him of his costs.

 

The following order is made:

 

"(l) The appeal to this Court succeeds with costs;

 

(2)       The order of the Court a quo is set aside and substituted by the following:

 

(a)       The appeal succeeds with costs:

 

(b)       The order of the trial court is set aside and substituted by the following:

 

(i)         The defendant is ordered to take steps to have a right of way, as described hereinafter, registered over his farm - certain portion A (called Mispah) of the farm lot 41, Dawid Massouw Locatie, no 108, registration division 1.0, district Schweizer-Reneke, Transvaal, in extent 509,6722 hectare, as held by title deed no 22850/53, dated 12 October 1953 - in favour of plaintiff's farm - certain remaining portion of portion of the farm Stroppan no 247, registration division 1.0, district Schweizer­ Reneke, Transvaal, in extent 428,2660 hectare, as held under title deed no 18745/51, dated 31 July 1951 - against payment of R472,50, as well as the costs of the registration thereof.

 

(ii)        The said road shall be 4,5 metre wide and shall run from plaintiff's farm as the present road which is used in terms of the order of the Transvaal Provincial Division of 21 February 1975, ie eastward along defendant's northern boundary, and then southward along defendant's eastern boundary up to the Migdol-Defence road.

 

(iii)       Defendant must pay the plaintiff's costs of the application in the Transvaal Provincial Division, reported as Van Rensburg v Coetzee 1975 (2) SA 320 (T). Plaintiff is declared a necessary witness."

 

RABIE JA, CORBETT JA, JOUBERT JA and VAN WINSEN AJA concurred.

 

Appellant's Attorneys: P G W Grobler, Brink & Partners, Pretoria; Symington & De Kok, Bloemfontein. Respondent's Attorneys: Ross & Jacobz, Pretoria; Naude & Naude, Van de Wall & Partners, Bloemfontein.

 

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