M and G owned adjoining farms in Knysna. The only access to their farms was a gravel road leading from the N2 national road and to get to his farm M had to make use of this road which crossed G’s property. M did not have a registered servitude over G’s farm, but had launched proceedings for an order declaring that he had acquired a right of way through prescription. These proceedings were still pending at the time of the present dispute.
In 2006, G decided to fence off its property and to erect a gate on each side through which M would still be able to gain access to the road and to his property. M was duly notified and the work was completed by the end of June 2006. The gates were electronically operated by means of remote control units. Additionally, a touch pad had been erected and a special code could be entered via the touch pad which opened the gates. A pedestrian gate had been installed on both sides of the fence and G offered keys to M to enable pedestrians to open the gate. A signboard had also been erected displaying M’s contact numbers should any persons wishing to gain access to his farm not have a remote control unit, a key to the pedestrian gate or the code to the touch pad. The system had a battery back-up, with the result that, in the case of a power failure, persons could still enjoy unhindered access to both properties.
M objected to the installation of the gates. His contention was that he had been wrongfully deprived of his right to use the road. He alleged that the touch pad could only be reached with difficulty by a person in a motor vehicle; this constituted not only an inconvenience but a grave security risk which never existed prior to the installation of the
gates. He claimed an order that unrestricted access to the road be restored to him. The crucial question was whether or not M had indeed been despoiled, ie unlawfully deprived of the use of the road.
The Court dismissed the application. The legal principle referred to by the Court may be summarised as follows:
Where a person has been wrongfully deprived of possession, he may through spoliation proceedings claim restoration of such possession. In such proceedings the Court does not concern itself with the rights of the parties, whatever those rights may have been before the spoliation took place. The Court merely enquires whether or not there has been a spoliation; if there has been, it restores the possession. The question whether an act, omission or
the conduct of a party amounts to spoliation has to be determined with reference to the facts and circumstances of each and every case individually.
In this case, the Court found that M was unnecessarily difficult and unreasonable towards the needs of G. In these days when violence is so rife on farms, it is not unreasonable to expect farming communities to take measures to reduce access their properties by unknown and uninvited intruders. The measures taken by G in this instance were definitely designed to provide not only some measure of safety for its members, but also for M. Safety measures will often be inconvenient to those subjected to them, but only for a short period of time. As soon as all the parties adopt a positive frame of mind and grow used to the protective measures, life becomes normal again.
M was not correct in saying that the system installed by G did not sufficiently provide them, their visitors or service providers with free and unhindered access to his farm. This was simply a question of attitude. M had apparently taken a conscious decision to oppose whatever changes G intended making which would affect use of the road in a way which was different from what had obtained in the past. This was unacceptable. The owner of a right of way has a duty to display reasonableness whenever he exercises such right.
Malan and Another v Green Valley Farm Portion 7 Holt Hill 434 CC 2007(5) SA 114 (E)