The difficult process of applying easy principles : three recent judgments on via ex necessitate
Loading...
Date
Authors
Scott, Johan (T. Johan)
Journal Title
Journal ISSN
Volume Title
Publisher
LexisNexis
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.
Description
Keywords
Via ex necessitate, Judgments
Sustainable Development Goals
Citation
Scott, J 2008, 'The difficult process of applying easy principles : three recent judgments on via ex necessitate', De Jure, vol. 1, no. 41, pp. 164-174. [www.lexisnexis.co.za]