Judge rules for applicant's access to private property
A successful spoliation application in the Land Claims Court has ensured Muntu Khumalo (69) can continue to take a short cut across his neighbour’s farm to reach his home.
For most of his life Khumalo cut across his neighbour's farm in Bergville in the Drakensberg to get to his home, as it was the shortest, easiest route, notes a Sunday Times report.
But in 2016 his neighbour put up a locked gate blocking Khumalo's way, forcing him to take another route, across a river, that added 10 minutes to his journey. It also meant he could not drive his vehicle to his property.
After several failed attempts to negotiate, Khumalo in 2018 went to the Department of Land Affairs, which put him in contact with attorney Caleb Motsa and Advocate Mluleki Chithi.
They helped him lodge a spoliation application.
The neighbour, Len Smith Investment Holdings' sole member, Andrew Dott, argued that he was ‘entitled to secure and make his property safe, as no third party had any right of access to or through the property, whether by agreement or by an existing servitude’.
Dott said he had closed off access as he was planning to open a nature reserve, and there had been poaching by herdsmen in the area.
Acting Judge MP Canca, however, instructed Len Smith Investment Holdings to give Khumalo access to his homestead.
In her judgment, Canca said it was not disputed that Khumalo had previously used the route with the knowledge of Dott's representatives and that he therefore had tacit consent, notes the Sunday Times report.
‘The evidence does not suggest that Khumalo was given lawful and reasonable notice of the termination of his concession,’ the judge said.
Canca further ordered that the two parties are ‘directed to engage meaningfully’ with regard to their respective rights and interests on the future use of the route.
Land expert Aninka Claassens, chief researcher at the University of Cape Town's land and accountability research centre, reportedly told the newspaper it was a myth that people did not have secondary access or rights to private property.
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.
