The difficult process of applying easy principles : three recent judgments on via ex necessitate

Abstract

Focuses on two recent sets of facts which are contained in the newest law reports, namely English v CJM Harmse Investments CC (2007 3 SA 415 (N)) and the Supreme Court of Appeal judgment Aventura Ltd v Jackson NO (case no 290/05 of 2006-09-15), available on Legalbrief Judgments) which brings the matter first raised in Jackson v Aventura Limited ([2005] 2 All SA 518 (C)) to an end. An evaluation of each of these judgments against the principles of our modern law in respect of the granting of a way of necessity is made, with specific emphasis on three aspects: firstly, the application of the principle of “ter naaster laage ende minster schade” (Van Leeuwen Censura Forensis 2 14 34: the principle that a way of necessity “must go by the route which is least burdensome and the nearest to the public roads” – Wilhelm v Norton 1935 EDL 143 168) which was of cardinal importance in all the aforementioned judgments; secondly, the rule that the creation of one’s own position of necessity is normally a bar to one’s successfully claiming a via necessitatis, a principle which never arose for discussion in the Aventura case where its application could have had a major impact; and, thirdly, the principle of utilitas praedio which, if considered and applied in the Aventura case, could likewise have effected a different outcome than the one reached by the Supreme Court of Appeal.