Jansen v Madden

• Jurisdiction: South Africa
• Judge: Jacobs J
• Judgment Date: 20 July 1967
• Hearing Date: 09 June 1967
• Court: Griqualand-West Local Division

Jacobs, J.:

The applicant asks for an order authorising him to F remove a fence erected by the respondent across a certain road and to replace a gate removed from the fence by the respondent. He also asks for an order interdicting the respondent from again obstructing the road pending the decision of an action which he intends instituting against the respondent for an order declaring that he has acquired by G prescription a right of way over the respondent's farm.

The applicant resides on the farm Witpan about eight miles from Kimberley on the Kimberley-Douglas main road. He is also the owner of the farms Rooipan, Vrede and Doornlaagte in the Kimberley district. These latter three farms adjoin one another and, according to applicant, they form one farming block and are farmed by him as H one unit. According to a sketch plan attached to the papers the main Kimberley-Schmidtsdrift road which runs roughly parallel to the Kimberley-Douglas road referred to above, passes over the farm Doornlaagte and these two main roads are connected by another public road marked E - F on the sketch plan and this road passes over the farm Klaarwater which belongs to the respondent. It is common cause that up to December of last year there existed a road or track from the road E - F over the farm Klaarwater to the boundary fence between Klaarwater and

Jacobs J

Rooipan with a gate in the boundary fence giving access to Rooipan. This latter road which is marked X - Y on the sketch plan is the disputed road and is the one over which the applicant claims a right of way. It is also common cause that A about November of last year the respondent wrote to applicant and informed him of his intention to close the road X - Y and, despite applicant's protests, he carried out this threat during December and removed the gate in the boundary fence between Klaarwater and Rooipan and fenced in the gateway.

The farms Rooipan, Vrede and Doornlaagte were purchased by the B applicant from one Frost in 1950 and applicant states that the road X - Y was then in existence and had since then continuously been used by him and others for the purpose of gaining access to and egress from the farm Rooipan. Certain Bantu employees of the applicant live on Rooipan but he himself visits the farm regularly once a week, or more if necessary, in C connection with his farming activities on the three farms mentioned earlier. Applicant states that he normally runs approximately 500 to 600 head of cattle on the three farms and that until the road was closed it was his practice, when marketing cattle running on these farms, to move them first over Klaarwater to his other farm Witpan where they were rested D for a few days before being taken into Kimberley for sale. Similarly, he states, cattle introduced on the block of farms were first brought to Witpan before being moved to Rooipan over the disputed road. Applicant alleges that as a result of the closure of the road X - Y he now has to travel over the whole distance of the road E - F and then down the Schmidtsdrift-Kimberley road as...