A growing trend in source application by our courts illustrated by a recent judgment on right of way

Abstract

In this note an attempt will primarily be made to demonstrate how a subtle and, to the present author, unwarrantable shift in methodology regarding the application of source materials has been taking place in our courts over the last few years. This will be done by subjecting a specific recent judgment (Johl v Nobre case no. 2384/2010 (WCC)) to scrutiny. In the second place, this judgment will be critically analysed in respect of its application of the fairly settled principles pertaining to the ambit of a right of way.