This is an
application for a final interdict moved by the applicant against the
interdict sought is in the following terms:
'2.1 That remainder of Forest Hill 9-KO is part of
Bamalete Tribal Territory in terms of Section
7 of the Tribal Territories Act, Chapter 32:03 of the Laws of Botswana and in
consequence, the said remainder of Forest Hill 9-KO is tribal land and
therefore public land vested in Malete Land Board to which Applicant, its
customers or persons intending to do business from Applicant's quarry site are
entitled to traverse without the consent of the 1st Respondent and or alternatively:
2.1.1 1st, 2nd and 3rd Respondents' conduct was unlawful
in placing a boom across an entrance to Farm remainder of Forest Hill 9-KO and
preventing Applicant the use of a road through such piece of land.
2.1.2 the Applicant enjoys a servitude of right of way
over the Southern boundary of the Farm Traquiar 10-KO as well as remainder
of Forest Hill 9-KO, alternatively;
2.1.3 Applicant enjoys a way of necessity in order to
access a public road namely, A1 Highway from Gaborone to Lobatse and or
2.1.4 Applicant as member of the public enjoys a right of
remainder Forest Hill 9-KO by virtue of acquisitive
prescription to the extent that such road has been in existence and use for a
period in excess of 30 years and or alternatively in terms of the Prescriptions
Act, Chapter 13:01; and or alternatively
2.1.5 The route in dispute is a road in accordance with
2.1.6 The Respondents bear the costs of this application
jointly and severally, the one paying the others to be absolved.'
litigation finds its origin in an urgent application moved by the applicant
sometime in early 2008 in which the applicant sought and was granted an interim
order restraining the respondents from preventing the applicant, its
customers, from using Mmokolodi route. Mmokolodi route is the route that leaves
the village of Mmokolodi going eastwards, through various portions of the farm
Traquair No 10-KO, before passing through the contiguous piece of land being
the remainder of the farm Forest Hill No 9-KO.
farm lies at the centre of this dispute.
convenience, the remainder of Forest Hill No 9-KO, shall throughout this judgment be
referred to simply as 'farm Forest Hill'.
imperative to describe the parties involved in the theatre of combat in this
matter so as to best appreciate their interests in this litigation.
applicant is Quarries of Botswana (Pty) Ltd, a private company duly
incorporated in terms of the Company Laws of Botswana. It is a lessee of a
quarry site within the Kweneng Tribal Territory, near Mmokolodi Village. On the
papers filed of
record, it appears that the applicant was granted the lease aforesaid in or
about 2003. The applicant holds a licence granted to it by the Director of
Mines to mine granite and micro-granite from the Mmokolodi Quarry. The
applicant appears to have been incorporated in 1981.
respondent is a trust duly registered in accordance with the Deeds Registry Act (Cap
33:02). The trust appears to have been formed and or registered for the
purposes of managing land assets of the Ba-Gamalete tribe. It appears to have
been formed on or about 5 March 2003. The inaugural trustees of the trust,
included the fourth respondent, Kgosi Kgolo ya Ba-Gamalete, Kgosi Mosadi
Seboko, as the custodian.
respondent is the secretary of the Mmokolodi Environmental Advisory Committee, of Mmokolodi
village. The committee appears to have been established by the community of
Mmokolodi at a Kgotla meeting sometime in January 2007.
respondent is an employee of the first respondent.
and third respondents were cited ostensibly because they were instrumental in
the blockage of the route that traverses farm Forest Hill. Their conduct appears to
have triggered the urgent application referred to earlier.
respondent is the Kgosi Kgolo ya Ba-Gamalete, who the parties agree is an
interested party by virtue of her position as Kgosi Kgolo ya Ba-Gamalete. She
was initially not joined as a party but, in due course and following an
application to join her, the parties agreed that such joinder was necessary and
an order to that effect was issued by this court.
It is common
cause that the applicant, its transporters and customers' use Mmokolodi route, inter alia, to ferry
the materials from the quarry site through Mmokolodi Village and past the
southern boundary of the portions of farm Traquair No 10-KO and farm Forest
Hill to join the A1 main road from Gaborone to Lobatse.
It seems plain
on the papers filed of record that the first respondent was aggrieved by the
conduct of the applicant of traversing through what it considered its 'private' property
without its authority.
discontent arising out of the aforesaid conduct of the applicant had been
simmering for a while (if one has regard to the minutes of several meetings
held at Mmokolodi village and correspondence between their respective
attorneys) before matters came to a head on or about 7 and 8 February 2008.
On 8 February
2008 or thereabout, the respondents blocked or caused to be blocked the route
that passes through farm Forest Hill.
filed of record by the applicant, capturing the stand off reinforce a sense, at
least in my mind, of a near chaotic situation which may easily have turned
result of the aforesaid blockage was that the applicant's business almost ground to a halt as
its customers could not conduct the usual business, including transporting the
stones through the normal route that traversed through farm Forest Hill.
plain on the papers that the encounter at the boom gate between the embattled
protagonists was not pleasant at all and, eventually, the applicant on or about
15 February 2008, filed an urgent application with this court and eventually obtained an
interim interdict referred to earlier.
interdict essentially maintained the status quo in that it allowed the
applicant and its customers and or other persons intending to obtain or do
business from the applicant's quarry site to use the Mmokolodi road that
traverses through farm Forest Hill.
determining whether the applicant is entitled to a final interdict, the issue of legal
ownership of farm Forest Hill has been thrust to the center, and once
established it would go some way towards answering the question whether the
applicant has demonstrated a clear right as one of the essential elements in
obtaining a final interdict.
have agreed that, in the event the court should determine ownership of farm
Forest Hill in favour of the applicant, then it shall not be necessary to determine the balance
of the issues and the same will fall away.
further agreed between the parties that, in the event the court determines the
issue of ownership of farm Forest Hill in favour of the first respondent acting
on behalf of the Balete Tribe, then the court shall determine the balance of
the issues, in order to determine whether or not the applicant, Quarries of
entitled to a final interdict.
remaining issue(s) pertain to the applicant's claim that it has a public right
of way through farm Forest Hill, alternatively, that it enjoys a way of
necessity in order to access a public road, namely the A1 highway from Gaborone
to Lobatse, and or that it has acquired ownership by prescription. As part of
the remaining issues, the court must of necessity
question whether or not respondents' conduct was unlawful in placing a boom across an entrance to
farm Forest Hill and preventing applicant the use of the route that traverses
applicant contends it enjoys a servitude of right of way over the southern
boundary of the Farm Traquair 10-KO as well as farm Forest Hill, alternatively,
it contends that
it enjoys away of necessity in order to access a public road namely, the A1
highway from Gaborone to Lobatse.
applicant further insists that, as a member of the public, it enjoys a right of
way over farm Forest Hill by virtue of acquisitive prescription to the extent
that such road has been in existence and use for a period in excess of 30 years
and or alternatively in terms of the Prescriptions Act (Cap 13:01).
applicant further contends that the route in dispute is a road in accordance with law.
respondents, on the other hand, deny that the applicant has a public right of
way and of necessity through farm Forest Hill and that the contested route is a
public road and or that the applicant enjoys a right of way through farm Forest
Hill by virtue of acquisitive prescription.
for a final interdict
settled law that the following constitute the requirements of a final
injury actually committed or reasonably apprehended; and
absence of similar protection by any other remedy. (See Setlogelo v
Setlogelo 1914 AD 221; Kaputuaza and Another v Executive Committee of
the Administration for the Hereros and Others 1984 (4) SA 295 (SWA) at p
It is also
trite that the onus is on the applicant to prove that it is entitled to a final
standard of proof is a balance of probabilities.
therefore that it would be incom petent to ask the court to interdict the
respondent from stopping the applicant from continuing with conduct that it has
no right to perform. (See Celliers v Lehfeldt 1921 AD 509.) In the case
of Admark (Recruitment) (Pty) Ltd v Botes 1981 (1) SA 860 (W) the court
denied the applicant
the remedy of a final interdict with respect to a restraint of trade on the
basis that the restraint of trade was unenforceable in that it was too wide.
also seem to suggest that in certain situations, even though the applicant may
succeed to prove a legal right, it does not follow that a final interdict will
invariably issue. For instance, although the parties to a marriage contract are bound in
law to be faithful to each other, with the result that in marriage, fidelity is
a recognised right, a court may be hard pressed to interdict a party who has
been unfaithful from committing adultery again. (See Van Winsen et al Herbstein
& Van Winsen: The Civil Practice of the Supreme Court of South Africa
(4th ed Juta and Co Cape Town 1997) p 1067; Osman v Osman 1983 (2) SA
authorities are legion that whether or not the applicant has a clear
right is a
matter of substantive law. (See L T C Harms Civil Procedure in the Supreme Court
(2nd ed Butterworths Durban) p 500.)
regard to the requisites of a final interdict and the authorities cited above,
it is now opportune and proper to investigate the first element that needs to
be established in order to obtain a final interdict, namely a clear right. This
takes us straight to the issue of the legal ownership of farm Forest Hill.
ownership of farm Forest Hill
The issue of
legal ownership of farm Forest Hill is hotly contested. Mr Monthe, learned
counsel for the applicant, contended that the remainder of farm Forest Hill is
part of and within the Bamalete Tribal Territory, it being in the Bamalete
Tribal Territory and/or Bamalete tribal area by virtue of the provisions of s 2
of the Tribal
Land Act (Cap 32:02) and s 7 of the Tribal Territories Act (Cap 32:03).
Mr Monthe, the Parliament of the Republic of Botswana, in passing the Tribal
Territories Act and including a piece of land being farm Forest Hill as part of
the Bamalete Tribal Territory, rendered any title held by the respondents
obsolete by operation of law.
argues that any interpretation of the law to the effect that Bamalete and their
chief are not subject to a statutory instrument would be incorrect and would be
intended to defeat the very clear purpose of the Legislature. Mr Monthe,
learned counsel for the applicant, in a passionate and eloquent submission to
the court indicated that the Bamalete Tribal Territory is no longer exclusively
for the benefit
of Bamalete as a tribe but for the citizens of Botswana and that it vests in
Malete Land Board.
It was Mr
Monthe's submission that in view of the 1993 amendment to the Tribal Land Act
making tribal land accessible to all and for the benefit not only of persons of
a particular tribe but for the citizens of Botswana as a whole, it is
inconceivable that Kgosi Mosadi Seboko, the fourth respondent, will hold for
land in Bamalete Tribal Territory parallel to the land board of the area.
emphasising that, according to Mr Monthe, the piece of legislation that
transformed, for lack of better word, farm Forest Hill, from being private land
to public land vesting in Malete Land Board, is the Tribal Territories Act,
more specifically s 7 thereof.
in essence, constitute the submission of the applicant regarding the legal
ownership of the remainder of farm Forest Hill.
respondents, on the other hand and with no less passion and eloquence, contend
that farm Forest Hill is owned by Bamalete Tribe by virtue of the title deed
earlier referred to, and filed with the deeds registry of the Republic of
SC, learned counsel for the respondents, submitted that the Balete, as
represented by the fourth respondent, by virtue of being the legal holder of
title in farm Forest Hill, their ownership cannot be extinguished because the
title aforesaid clearly and authoritatively denote and record the title of
ownership on the farm.
SC also firmly contended that Mr Monthe's submission
rights of the Balete to the said piece of land has been rendered obsolete cannot be correct and
that it has no basis in law in that no transfer of title and ownership as
required by law has been effected as required by the Deeds Registry Act to any
entity. He therefore contended that the net effect of Mr Monthe's submission is
unacceptable as it suggests that farm Forest Hill has been expropriated by the
State and/or government.
Mr Liebowitz SC, such a contention would be unmeritorious as any such private
to public accession of land rights which fails to meet the fundamental
requirements of an agreed or fair and prompt compensation by the State to the
title holder would offend the principle of natural justice.
SC contended further that what the Tribal Territories Act and the subsequent amendment
did was to incorporate farm Forest Hill into Bamalete Tribal Territory and that
by such incorporation ownership of farm Forest Hill was not changed.
I have spent
anxious and, on occasion, sleepless nights considering the legal ownership of
farm Forest Hill, and tried to come to terms with the implications of Mr
Monthe's submissions that farm Forest Hill is tribal and/or public land that vests in the Malete
Land Board and that the effect of the passage of the Tribal Territories Act as
amended, more particularly s 7 thereof is to divest the Bamalete of ownership
of a piece of land with respect to which they hold title in terms of the Deeds
contention that farm Forest Hill is tribal land speaks, in essence, to a
particular category of land in Botswana's land tenure system. Purely to place the classification of
land in its proper perspective, it may be helpful to give a very brief overview
of the land tenure system in Botswana. This exercise is helpful as it will
illuminate the various classifications of land in Botswana and their historic
origins. This would, in turn, help in interpreting whether farm Forest Hill is
tribal land or not.
In terms of
the existing legal literature or scholarship, it appears incontrovertible that Botswana has a
plural land tenure system. As the learned author Clement Ngo'ong'ola states,
the bulk of the land which is predominantly held and occupied by indigenous
peoples under customary notions of land tenure falls within the category called
'tribal land'. The other categories are 'State land' and 'freehold land'. State
land as the name suggests belongs to the State. The learned author makes the
point that 'State land' during the colonial period was called 'Crown lands'. He says that
'to some extent' both State and freehold land are governed by 'received law' in
contradistinction to tribal land which is largely held under customary law.
(See Clement Ng'ong'ola, Land problems in some peri-urban villages in Botswana
and problems of conception, description and transformation of 'Tribal' land
tenure Vol 36, No 2 Journal of African Law.)
I have found
the above academic piece helpful in illuminating my path, but must add that the meaning
that I shall finally attach to the various statutory provisions cited before
me, more particularly ss 2 and 7 of the Tribal Land and Tribal Territories Acts
respectively, is mainly textual. I have read s 2 of the Tribal Land Act, which
defines 'land' and 'tribal area'. The definition of 'land' and 'tribal area' is
circuitous and may have absurd consequences to the extent that it may give the
impression to some
land in a tribal territory is tribal land. This is so because such an interpretation would
have the effect of extinguishing private rights properly held in terms of other
valid statutory instruments such as the Deeds Registry Act.
It is trite
law that the courts should avoid interpretations to statutory provisions that
have absurd consequences. In my view, a literal interpretation of s 2 of the
Tribal Land Act that defines 'land' and 'tribal area' in a manner that suggest
that all land in
a tribal territory vests in the land boards and or is public land would lead to
absurd consequences and should not be adopted.
Most of our
work as judges is consumed by interpreting statutory and/or contractual
provisions. With respect to statutory interpretation, the courts have developed
a wide array of techniques to assist them interpret statutory provisions. Quite often when the
literal interpretation appears to yield absurd results, we attempt as best as
we can to find out what the intention of parliament in enacting the said
provision(s) was and in so doing the courts are not usurping the function of
the legislature. It is the courts that are confronted with real live issues
that may not have been contemplated by the legislature in formulating the
provisions of statute.
true and perfect intention of the legislature has received imperfect
expression, the court must not hesitate to make the logically defective letter
of the enacted law logical (Minister of Transport for Ontario v Phoenix
Assurance Co  39 DLR (3d) 481).
to find out the true intention of the legislature is often called the purposive
approach. The purposive approach enjoins the court to give an interpretation that will render the
legislation effective, instead of being ineffective or unjust.
It is trite
that to depart from the literal interpretation on the basis that to follow it may
lead to absurdity requires that the absurdity must be glaring.
the well known canons of interpretation such as the literal rule and purposive
approach, there are also presumptions that help the courts in interpreting statutes. One such presumption
appears particularly relevant to this case. It is the presumption that the
legislature does not intend that which is harsh, unjust and unreasonable.
presumption is applied to the interpretation of statutes on the basis that
every legal system strives to achieve standards of reasonableness, justice and
fairness and that the law making organ of the system must thus be presumed to enact with
this aim in mind. (See Joosub v Immigrants' Appeal Board 1919-1920 CPD
109 at p 111.)
In the case
of Principal Immigration Officer v Bhula 1931 AD 323 it was held that:
'Where however two meanings may be given to a section, and
one meaning leads to harshness and injustice, whilst the other does not, the
court will hold that the legislature rather intended the milder meaning than
the harsher meaning.'
above authorities reinforce the position I subscribe to that a judge, because
of the special nature of his role, cannot change the fabric from
law is woven, but he/she has the right to iron out the creases (See Seaford Court
Estates Ltd v Asher  2 KB 481 at p 499; Kgarebe v National Food
Technology Centre  1 B.L.R. 57, IC and Molatlhwe and Others v The
Diocese of Botswana of the Church of the Province of the Central Africa and
Another  3 B.L.R. 317.
above canons of interpretation and the presumption referred to earlier, I am clear in my mind that
it would be absurd to interpret s 2 of the Tribal Land Act that defines 'land'
and 'tribal area' and the corresponding section of the Bogosi Act (Cap 41:01),
to which reference is made by the Tribal Land Act, to mean that all land in a
Tribal Territory is public land vesting in the land boards, in this particular case
the Malete land board, because such an interpretation would be harsh, unjust and/or unreasonable.
Such an interpretation would take, by the backdoor, property that is in private
hands without due process and without any form of compensation whatsoever.
earlier, every legal system strives to achieve standards of reasonableness,
justice and fairness and I would be the last to assign an interpretation to any
statutory provision that would be unjust, unreasonable and have harsh consequences. If
Parliament had intended to extinguish the rights of the first respondent to
farm Forest Hill it would have specifically said so and not left it to
considered view, farm Forest Hill belongs to its owner as reflected in the
title deed. Any person and or entity claiming ownership must show that the said
farm was duly transferred by a deed of transfer registered at the Deeds Office;
that the said farm was duly acquired in terms of the Acquisition of Property
Act (Cap 32:10).
Registry Act provides that ownership of land may be conveyed from one person to
another by means of a deed of transfer executed or attested by the registrar.
This court has not been furnished with evidence suggesting that title in farm
Forest Hill ever passed to any entity as required by the Deeds Registry Act or any other law. It
follows therefore that Mr Monthe's argument that the first respondent's title
to farm Forest Hill has been extinguished by operation of law is without merit and
cannot be sustained.
submissions, if accepted, would render people or entities who have title to
land which is registered in terms of the Deeds Registry Act, extremely vulnerable, so long as
such title is within a tribal territory as defined by the Tribal Territories
respectful view, Parliament in its wisdom passed the Deeds Registry Act in
order to ensure that the process of acquiring rights in land is clear, orderly
and offers landowners the greatest possible protection and security. Even if it
were to be assumed that the parliament of Botswana has no regard for private
property, it is
doubtful, in the face of the constitutional provision entrenching the right to
property that Parliament would have the constitutional com petence to do so.
Section 8(1) of the Constitution of Botswana provides that there should be
'prompt payment' of 'adequate compensation' whenever 'property of any
description' or 'the interest in or right over property of any description' has
been compulsorily taken possession of or acquired.
considered view, s 7 of the Tribal Territories Act simply incorporated farm Forest Hill into
the Bamalete Tribal Territory. It cannot be credibly said that because the
remainder of farm Forest Hill is part of the tribal territory of Balete then
ipso facto or ipso jure it becomes part of tribal land to be governed by the
Tribal Land Act. I must repeat that, if Parliament had intended such a
far-reaching consequence to extinguish or take away pre-existing rights, it
would have said
so in very clear terms. The view I take is that no parliament can be presumed
to act in a high-handed fashion that extinguishes rights, willy nilly, without
complying with the principle of natural justice or without recourse to the
principle of international law.
in my view, therefore, that Balete Tribe as represented by Gamalete Development
Trust (first respondent) and Kgosi Mosadi Seboko of the Balete Tribe (the fourth respondent) are the
registered and/or legal owner of the farm Forest Hill.
determined that farm Forest Hill belongs to the Balete Tribe pursuant to the
deed of transfer no 387/1925, I now turn to consider the next question being
whether or not the applicant enjoys servitude rights of way over farm Forest
Hill and other questions incidental thereto.
It is trite
that a servitude is a limited real right or ius in re aliena which entitles its
holder either to the use and enjoyment of another person's property or to insist
that such other person shall refrain from exercising certain entitlements
flowing from his or her rights of ownership over and in respect of his or her
property which he or she would have if the servitude did not exists. (See
Badenhorst, et al Silberberg
and Schoeman: The Law of Property, (5th ed Butterworths Durban 2006)
at p 321.) What that means in simple terms is that a servitude simply confers a
real right to the property of another.
applicant maintains that the disputed route has been in use by the public of
which the applicant is a member or class for over 30 years and so members of
the public, including the applicant, have acquired a right of use of the route
in the event the
land thereto was private.
applicant relies, inter alia, on the affidavit of the headman of Mmokolodi
Village Mr Molomo Rasetlhogwane, in support of his contention that the disputed
route has been used by the public for a long period of time.
the applicant contends that it has been using the said route undisturbed for a
period of not less than 30 years.
applicant relies on s 3(1) of the Prescriptions Act.
of the Prescriptions Act deals with acquisitive prescription. It provides as
'3(1) Acquisitive prescription is the acquisition of
ownership by the possession of another person's movable or
immovable property or the use of a servitude in respect of immovable property
continuously for 30 years nec vi, nec clam, nec precario.'
applicant contends further that it is entitled by way of necessity to traverse
the disputed piece of land.
papers it seems probable, and I so find, that the disputed route has been used by members of the
public for time immemorial. However, there is no basis and or evidence to
suggest that the applicant is a member of the public, having regard to the
special nature of the applicant's operations. Even if it were to be assumed
that the applicant is a member of the public, the evidence filed of record
suggests that the applicant came to the scene less than 30 years ago. The applicant was
incorporated in 1981, and assuming that it started operations then, this period
falls short of 30 years. On the evidence, I am satisfied that the public right
of way extended predominantly to the people living around Mmokolodi village and
their visitors, especially with reference to pedestrian, animal driven traffic,
and not the applicant and or its customers.
case, it appears that no servitude rights of way over the remainder of Forest
Hill 9-KO have been registered on the title deed of the said property and there
is no endorsement on farm Forest Hill title deed entitling the applicant to
traverse the said property.
It is the
position in law that the granting of servitude by an owner over his land by
another is a serious matter and must be strictly interpreted by the courts.
(See Lowe et al,
Elliott - The South African Notary (6th ed Juta & Co Ltd Cape Town
1987) at p 70.)
I turn now
to consider the applicant's argument and or averments in relation to
It is trite
law that acquisitive prescription, as another way of acquiring ownership, is a
continuous process, which means that the applicant must have possessed and or used farm
Forest Hill for an uninterrupted period of 30 years, nec vi (without force),
nec clam (openly), nec precario (non-precariously).
In the case
of Malan v Nabygelegen Estates 1946 AD 562 at p 574 the court after
holding that nec precario must be given the meaning of 'not on sufferance'
'In order to avoid misunderstanding, it should be pointed
out here that mere occupation of property "nec vi nec clam nec
precario" for a period of 30 years does not necessarily vest in the
occupier a prescriptive title to the ownership of that property. In order to
create a prescriptive title, such occupation must be a user adverse to the true
owner and not occupation by virtue of some contract or legal
relationship such as lease or usufruct which recognizes the ownership of
already held that the applicant has not used farm Forest Hill for a continuous
period of 30 years.
this case it is clear that at all times material hereto, the applicant recognised the first
respondent as the owner of farm Forest Hill.
therefore that the applicant cannot succeed on acquisitive prescription. In the
premises, there is no basis to conclude that the applicant has exercised the
alleged right of way for the past 30 years nec vi, nec clam, nec precario.
somewhat startled that the applicant must insist that it is entitled to
traverse private property of another whilst there is evidence that it can use
to access public roads. It seems to me that the Environmental Impact Assessment Study and/or Report
of 2004, upon which the applicant premised the grant of its quarry licence
identified four potential routes.
respectful view, it does not lie in the mouth of the applicant to complain that
the alternative route is cumbersome.
entirely with the position of the first respondent that the extent to which
such routes are rendered less cumbersome to the applicant in its commercial operations should be
an inherent part of the applicant's commercial and financial commitments and or
In my view,
it would be harsh and unjust to burden the first respondent with problems that
are peculiarly for the applicant to resolve, in order simply to advance its
commercial interests. Sheer expediency can never take precedence over vested
rights. If the applicant has to traverse farm Forest Hill it can only do so
with the first respondent's consent, failing which it simply has to seek alternative routes.
Its choices are stark: it has to adapt or die.
applicant not only does not have the public right of way, for the reasons
already stated, but can also not claim a way of necessity. The applicant's
claim of way of necessity can only succeed if it can show, by credible and
that it has no direct or reasonably sufficient access to a public road and is
therefore compelled to use the route traversing farm Forest Hill. On the
evidence, there appears to be access to a public road as earlier indicated. In
my view, a way of necessity may not be claimed to shorten the distance over
which the public road should be reached without crossing the land in
alternatively, the applicant is not contending that it is an owner of land
adjoining the respondents' property. It is trite that a way of necessity is a
right of way granted in favour of a property over an adjoining one constituting
the only means to access a public road. (See Van Rensburg v Coetzee 1979
(4) SA 655 (A).)
whole, the applicant has not furnished sufficient evidence that supports its
view that it does not have reasonable or sufficient access to the A1 highway
On the evidence
and having regard to my conclusions aforesaid, the first respondent was
entitled to place a boom or a barrier to stop the applicant and its customers
to traverse its private property.
to the conclusion that farm Forest Hill is private property and that the
applicant has no public right of way through farm Forest Hill or any way of
necessity, it follows therefore that the applicant has failed to satisfy the
first element of a final interdict being a clear right.
also no evidence of any injury, let alone one which cannot be remedied by
damages. On the papers, the only prejudice that the applicant can conceivably suffer
relates to inconvenience, namely that it is convenient to join the A1 highway
from Gaborone to Lobatse through traversing farm Forest Hill. This is not the
kind of prejudice that can warrant a final interdict against an owner of
property. The applicant has no right to traverse farm Forest Hill. It can
therefore not ask the court to interdict the respondents to stop it from
conduct which it has no right to engage in.
It seems to
me that the applicant has failed to satisfy the requirements of a final interdict, on a
balance of probabilities.
to the conclusion that the applicant has failed to meet the requirements of a
final interdict, it is not necessary to traverse other grounds raised by the
result, the application is dismissed with costs.