REPORTABLE

IN
THE HIGH COURT OF NAMIBIA

CASE
NO: A 221/2009

In the matter between:

and

CORAM: GEIER, AJ

Heard: 28 March 2011

Delivered: 16 February 2012

_______________________________________________________________

JUDGMENT:

GEIER, AJ: [1] Some 10 kilometres to the south of the
capital of Windhoek and on the crescent of the Gross Hertzog
Mountain, one can see a telecommunications/microwave tower. This
tower is situate on Portion 12 of the farm Regenstein no. 32. A
further piece of land, Portion 17 lies adjacent to Portion 12, which
it partially surrounds. Both portions, owned by Applicant, are
totally surrounded by the farm Regenstein no. 32, owned by the First
Respondent.

[2] Both portions are utilised by the Applicant in its
telecommunication business. The Applicant also makes these lots
available to other players in the telecommunications field in that it
lets Portion 17 to the cellphone company Leo, the Namibian
Broadcasting Corporation, MTC, Satcom, TransNamib and the Embassy of
the United States of America.

[3] In order to gain access to Portions 12 and 17 one will first have
to utilise a proclaimed farm road, road FR 1425, which turns off the
B1 national road leading to Rehoboth, and which runs for some
distance into the farm Regenstein. To reach the said
telecommunications installations one has to leave road FR 1425 and
turn onto a road which takes one then up to the crown of the of the
Gross Hertzog Mountain.

[4] In so doing one utilises a servitude, which was registered
against the title deed of the farm Regenstein, as the servient
tenement, which servitude was similarly registered against the title
deed of Portion 12 of the Applicant’s property, as the dominant
tenement.

[5] When travelling along this route one will have to pass through
three gates.

[6] The first gate has been erected on the proclaimed road, near the
entrance to the farm Regenstein. It controls access to a housing
estate also situate on the Farm Regenstein. This Housing estate is
managed by the Second Respondent. The second and third gates, both
locked, are situate on the servitude road, which in turn is also
situate on Farm Regenstein. The third locked gate is at the entrance
of portion 12 on which the Applicant’s microwave tower is
located, which is at the end of the servitude road.

[7] A dispute has now arisen between the Applicant and the
Respondents relating to the use of both the farm road and the
servitude road. This dispute relates mainly to the subleases, which
have been granted by the Applicant, to the above mentioned
sub-lessees, and in respect of which the Respondents allege that
their permission in respect of the use of the road had to be obtained
first and that such subleases would also be contrary to the
restriction of the applicable title deeds.

[8] Applicants on the other hand have alleged
that, in recent times, the Respondent’s have seen fit to
unlawfully deny the Applicants’ lessees the use of the public
road and the servitude road and that in particular the way, in which
the gate, which gives access to the farm, is operated, unlawfully
impedes its access. Accordingly the Applicants seek to interdict the
Respondents from their alleged unlawful conduct together with certain
alternative declaratory relief relating to access, by way of a
servitude of necessity to Portion 17 of Farm Regenstein.¹

[9] It appears more particularly from the relevant Notice of Motion
that the Applicant initially sought the following orders:

1. 
   Interdicting and restraining the First and Second Respondents from
   hindering or restricting the access of the Applicant and its lessees
   to Road FR 1452 in any way whatsoever including but not limited to
   interdicting the Respondents from operating and closing a gate at
   the commencement of such road located at or near the trunk road
   between Windhoek and Rehoboth;

   
   

2. 
   Directing the Respondents to remove the gate erected and operated by
   them at the entrance to Road FR 1452 forthwith;

   
   

3. 
   Interdicting and restraining the First and Second Respondents from
   hindering the access of the Applicant and its lessees from making
   use of the servitude of right of way registered in favour of portion
   12 of farm Regenstein no. 32 over the First Respondent’s
   property being portion 9 of farm Regenstein no. 32, which servitude
   is more fully described in annexure “B1” to the
   Founding Affidavit;

   
   

4. 
   In the alternative to paragraph 3 and in so far as may be necessary,
   declaring that portion 17 of the farm Regenstein no. 32 enjoys a
   servitude of way of necessity over portion 9 of farm Regenstein no.
   32 with the extent and route of such servitude as being set out in
   the same terms as the right of way registered in favour of portion
   12 of farm Regenstein no. 32 over portion 9 of such farm as set out
   and registered in the Deeds Registry in annexure “B1”
   to the Founding Affidavit, and
   

   
   

5. 
   Directing the Respondents to pay the costs of this application on
   the scale as between legal practitioner and client, alternatively
   directing that the Respondents pay the Applicant’s costs of
   this application;

   
   

6. 
   Granting to the Applicant such further and/or alternative relief as
   this Honourable Court deems fit.
   

   
   

[10] It becomes clear that the Applicant, in the main, seeks
interdictory relief.

[11] Such relief is then sought firstly in respect of access to Farm
Road 1425, and secondly in respect of the ‘servitude right of
way’, ‘the servitude road’.

[11] In order to be granted such relief the Applicant will have to
establish –

1. 
   a clear right;
   

   
   

2. 
   an injury actually committed or reasonably apprehended, and
   

   
   

3. 
   the absence of similar protection by any other
   ordinary remedy²

   
   

in respect ‘Farm Road 1425’ and the ‘servitude
road’.

THE INTERDICT SOUGHT iro FARM ROAD 1425

[12] Here the interdict sought relates to the alleged hindering or
restricting of access of the Applicant and its lessees to Road FR
1425 in respect of which an order is sought interdicting the
Respondents from operating and closing the gate at the commencement
of such road located at or near the trunk road between Windhoek and
Rehoboth.

[13] Mr. Frank SC, who appeared together with Mr. Maasdorp submitted
that it is common cause that this gate, which has been erected in its
present form by Respondents to control access to the housing estate,
which has been developed on the farm Regenstein, is located on the
aforementioned proclaimed farm road.

[14] Reliance was placed on ‘the clear
prohibition’ contained in Section 48 of the Roads Ordinance³
in respect of which the relevant sub-sections
provide as follows:

“(1) Without the consent of the Executive
Committee no person ... shall close or otherwise bar any swing gate
across a proclaimed road against passage.

(2) Any person who contravenes or fails to comply with the
provisions of this section shall be guilty of an offence.”

[15] In recognition of these provisions it was submitted that the
construction of the gate, per se, did not contravene the Roads
Ordinance - provided that it does not hinder the public’s
freedom of passage - but that it was not permissible for Respondents
to control access in the manner that the Respondents do.

[16] In conjunction with this it also needs to be mentioned here that
the Applicants abandoned the relief sought in prayer 2 of the Notice
of Motion in terms of which they originally sought to procure an
order directing the Respondents to remove the gate erected and
operated by them at the entrance to Road FR 1425.

[17] As it was further common cause that the Respondents utilised
this said gate to control access to the property - and as this was
done by way of a register - which would have to be completed prior to
be allowed to move onto the premises - the Applicant and its tenants
were not afforded unhindered access in the sense that they would not
be allowed to open and close the gate themselves and to move freely
through such gate. It was thus pointed out that the Applicant and its
tenants were in this manner dependent on the Respondents to grant
them access.

[18] It was also argued that where someone is entitled to free
access, one cannot erect a gate across the road for the purpose of
preventing unauthorised persons from using it and by keeping it
closed at times to prevent the full use of the road by persons and
vehicles seeking access via that road who are entitled to use it.

[19] It was thus submitted that should the Respondents wish to keep
the gate they would have to allow free access at all times to members
of the public wanting to make use of the proclaimed road and that
they, at best, would be entitled to write down the registration
numbers of all vehicles as they would pass through the gate from time
to time. It was submitted in conclusion that no defence had been made
out by the Respondents.

[20] Mr. Heathcote SC who appeared together with Mr. Schickerling on
behalf of the Respondents on the other hand submitted that the
Applicant had failed to establish any clear right - nowhere was it
alleged that the road in question was ever intended or for that
matter used by the broad public. The Applicant had admitted that
access to its personnel had for many years been dealt with in terms
of an agreement, which they referred to as an "arrangement".
The only issues outstanding as regards that agreement were the aspect
of maintenance of the road and some security aspects, which were
still the subject of negotiations at the time that the Applicant
decided to lodge this application, despite the Respondents'
indication to continue negotiations. Applicant had never been refused
access and in this regard it was also not alleged that the
Respondents have threatened to deny the Applicant any access. The
Respondents' alleged insistence that traffic proceed only one-way was
abandoned prior to the application having been lodged and that this
complaint had thus become moot. The Applicant's sole remaining
complaint was the fact that the Respondents failed to recognise the
sub-leases in terms whereof the Applicant leases portion 17 to its
so-called operators to set up structures contrary to the clear
restrictions of the title deed of Portion 17. This was the real
reason on which the applicant approached the court with the actual
aim to enforce the lease agreements which run counter to the
restrictions imposed in respect of Portion 17 by way of a court order
upon the Respondents. Save for the refusal to recognise these lease
agreements no case whatsoever is established by the Applicant that
the Respondents have infringed the Applicant's right to make use of
the road and servitude in the manner as was agreed between them and
which have continued for many years. It was therefore submitted that
the Applicant also failed to establish an injury actually committed
or reasonably apprehended on a balance of probabilities.

THE CLEAR RIGHT RELIED UPON

[21] It was always common cause between the
parties that Farm Road 1425 was a proclaimed farm road. Clearly the
public’s the right of access and the right to traverse into the
Farm Regenstein over such road – and thus the Applicant’s
rights of access, Applicant’s tenant’s rights of access
and for that matter the public’s right of access and the right
to traverse into the Farm Regenstein over such road - would therefore
always be regulated by the Roads Ordinance 17 of 1972.⁴
The prohibition to bar or obstruct such a road is,
as mentioned above, contained in Section 48(1) of this Ordinance.
Clear rights were thus established in these respects.

HAVE THE APPLICANTS SHOWN AN INJURY OR REASONABLE
APPREHENSION OF HARM

[22] In this regard Applicant has alleged that it and its
predecessors have made consistent use of the road over the years.
Also the other operators, such as the Namibian Broadcasting
Corporation, Satcom and the Embassy of the United States of America,
all lessees of the Applicant, have utilised FR 1425 for some time. It
was now contended, that, as ‘a practical matter’
Applicant and its lessees require immediate access to Portions 12
(and 17), if and when the need arises. It was then alleged that the
Respondent’s in recent times ‘have seen fit’ to
‘impede’ the Applicant and its lessees in their use of
the public road. The circumstances relating to the establishment and
running of a security check point were then sketched and reliance was
also placed on an incident where an employee of SatCom, a certain Mr
Dos Ramos, was delayed by some 20 minutes to gain access to the road.
It was thus contended that the impairment of access and egress to FR
1425 was in conflict with the relied upon provisions of the Roads
Ordinance, which acts also constitute a criminal offence.

[23] More particularly the Applicant alleged that the unlawful
interference with the applicant's rights arose after the
establishment of the Second Respondent. The Second Respondent, the
Home Owner’s Association of Regenstein was set up as a
consequence of a small and exclusive development on the farm
comprising luxury homes established for a small group of affluent
people. These homes have been and are being set up on some 50 sites
on the farm as allocated by the First Respondent. The Association has
a lease agreement with the First Respondent in respect of the
remainder of the farm, (apparently excluding the individual sites
upon which homes have been constructed) but including areas over
which the public road and the servitude right of way are located.

[24] After the establishment of the Second Respondent and the
commencement of the exclusive residential development on the farm,
the First or Second Respondents proceeded to set up a security check
point and a gate at the boundary of the farm close to where the
proclaimed road no FR 1425 turns off the national road. This check
point is usually manned by security personnel who are mostly in
attendance there. Access and egress to the road is only afforded to
the applicant by these security guards who open the gate in question.
This despite the fact that road no FR 1425 is and has at all material
times been a public proclaimed road. The impairment of access and
egress in this manner is thus in clear conflict with the provisions
of the Roads Ordinance. It is not only unlawful but constitutes a
criminal offence. In this regard reference was made to s 48 of the
Roads Ordinance, 17 of 1972 as amended.

[25] After the establishment of the development on the farm and the
Second Respondent, several meetings were held between the Applicant
and the Second Respondent spanning some years concerning the
applicant's technicians requiring access to the facilities on Portion
12. Applicant’s technicians initially made use of access cards
which would be shown to the security personnel at the gate at the
commencement of Road FR 1425. As the vehicles used by the technicians
bore the applicant's logo entrance to the premises was usually
granted without much delay. Even a remote control for the entrance
gate at the commencement of Road FR 1425 was initially provided, but
this was taken back during 2007. After this point in time, the
applicant's employees no longer enjoyed unrestricted and unhindered
access to its properties.

[26] This averment was qualified in the following respects. The
applicant's technicians were still mostly able to enter the premises
without much delay as the security personnel who are almost always in
attendance have been briefed by the Second Respondent to afford the
applicant's technicians access to the site. It was pointed out
however that the Applicant is entirely dependent upon the presence of
these security officials. This arrangement is unsatisfactory in the
view of the Applicant if an emergency were to arise and were no
security officials would be present as the circumstances relating to
the delay experienced by one of the applicant's lessees on Portion
17, Satcom, illustrated when security guards did not have the means
to open the electronically controlled gates over a particular Easter
weekend. These restrictions, so the Applicant contended, were in
clear conflict with the Applicant’s rights as a user of a
public road and under the servitude.

[27] Such position was also untenable in respect of the Applicant
lessees - including TransNamib, MTC, Cell One and the NBC. The
Applicant and its tenants, and for that matter, any member of the
public as well, should not be dependent upon the whim of the
Respondents and their guards acting on the Respondents’
instructions for access as this was clearly in conflict with the
rights conferred by the Roads Ordinance. The Respondents’
insistence on the other hand, on such control was in clear conflict
with the Ordinance and the servitude.

[28] In addition, and as a matter of practical importance, the
Applicant and its lessees require immediate access to Portions 12
(and 17), if and when the need arises such as in the event of faults
when the equipment needs to be repaired as a matter of urgency to
prevent undue and entirely avoidable interruptions of services. The
need for such immediate action was graphically illustrated with
reference to the case of TransNamib, Namibia’s national rail
operator, which has a radio transmitter on the site. This transmitter
controls rail movements on the entire rail network in southern and
central Namibia. It is critical that TransNamib should have unimpeded
immediate access to the transmitter in the event of a fault occurring
with that transmitter. Such a fault has fortunately not occurred
since the respondents have regulated access and egress over the farm
in the manner described. The Applicant’s strongly felt that is
something which should no longer be left to chance as a disaster
could unfold in the event of delays to fix a fault on that
transmitter. It was pointed out that the Applicant's tenant’s
rights to occupy the portions are derived from the Applicant’s.

[29] The Second Respondents' Chairperson, Mr PF Koep and
representatives of the applicant had met with a view to enter into
agreements concerning the maintenance of and easy access to the
access road and to take into account security and safety concerns of
the residents of the development. The applicant has stated that it
would have no difficulty with regard to its personnel properly
identifying themselves, not making noise or speeding on the road and
generally seeking to accommodate the security concerns of the
residents where this would not compromise its rights of access.

[30] The Second Respondent on the other hand continued to fail to
recognise the right of the applicant to proper and unhindered access,
the applicant's rights, as owner, to lease portions of these sites to
other operators or those institutions, such as the US Embassy, who
would require access to the area in order to put up receivers or
antennas and thereafter maintain and repair them as and when the need
would arise. The Second Respondent took the position that the
applicant is not entitled to lease its premises without such parties
first entering into a separate agreement with the First or Second
Respondents. The Respondents' approach was articulated in a letter
written by the Second Respondent's Chairperson, Mr Koep, dated 14
July 2008 concerning access to one of Applicant’s lessees,
Satcom, in which he stated that he has advised Satcom not to pay its
rental to the applicant ‘until such time as an agreement
between Telecom and Regenstein has, in fact, been signed’. This
advice, in turn, was regarded by the Applicant as constituting the
delict of unlawful interference with its contractual rights, and
advice given in blatant conflict with the public nature of a portion
of the road.

[31] It should be mentioned that Mr Koep had also advised Mr Stanley
Shanapinda, the Applicant’s Head of Legal Services, that the
First and Second Respondents would apply for the closure of the
public road FR 1425. It was indicated at the time that the position
of the Applicant would be reserved and that the Applicant would in
all likelihood oppose such an application.

[32] On the occasion of advising the Respondents of the NBC’s
need to construct a replacement tower a draft agreement relating to
the maintenance of the road was also presented. The parties however
could not reach agreement in this regard as mentioned above.

[33] Given the increasing difficulties and the stance adopted on the
part of the Second Respondent, Applicant’s resolved to refer
the matter to it's legal practitioners of record. This was
particularly so after it had been alleged in a letter of the Second
Respondent, dated of 4 October 2008, that the applicant’s
presence and that of [its] employees and/or service providers
constitutes a threat to the security of the estate", and as a
result of which ‘a list of names of people who would be
entering the premises was demanded, requiring further that such
employees should be identifiable by wearing uniforms and that the
Applicant should accept liability for the conduct of its employees.

[34] A string of correspondence followed. Respondents in essence, and
as appears from the selected passages below, persisted with the
stance that the Applicant was not entitled to sublet their land and
in this regard Respondents demanded further that the Applicant
conclude an agreement with regard to the use of the access road by
its lessees.

[35] Relevant to this leg of the enquiry are then the following
passages emanating from the pen of Mr Koep in his capacity as the
Chairperson of the Second Respondent :

1. 
   In the letter of 1^st August 2008 addressed to Applicant’s
   Assistant Legal Advisor he wrote :
   

   
   

“ … It is recognised that whatever
rights Telecom Namibia may have with regard to access to the Gross
Herzog Mountain, Telecom Namibia is not legally entitled, without
permission of the landowner, being Regenstein Pty Ltd, to allow
access to that sight.” (site)
…

2. 
   In the letter of 17 October 2008 addressed to Applicant’s
   legal practitioners of record it was placed on record :
   

   
   

“ Yesterday one of our members was
approached to allow Cell One, a mobile telephone operator, onto the
farm, as apparently your client has entered into an agreement with
Cell One, in terms of which that company may establish itself on the
top of the Gross Herzog Mountain on the property belonging to our
client.

We have attempted to point out to you why we are of the opinion
that your client is not empowered to do so and we are quite frankly
amazed that this should happen.

We would therefore request you to in turn request your client not
to engage in behaviour which may exasperate an already illegal
situation and conduct … “.

[35] Ultimately the battle lines were drawn as follows when Mr
Ruppel, the Applicant’s legal practitioner of record addressed
a letter in the following terms to the Chairman of the Second
Respondent :

“ We refer to earlier correspondence
herein, and more specifically our letter to you of 10 October 2008.
In that letter we asked you to clarify on exactly what authority
access to what is both a proclaimed road and a right of way our
client is entitled to under the servitude registered against the
title of Farm Regenstein is denied or sought to be restricted.

You recorded your understanding of the nature of the servitude
rights our client and those occupying the Grosshertzog site or having
to enter that site under the authority of our client. We disagree
with your assertion that Telecom is not entitled to access the
Grossherzog site along the servitude road registered against the
title of the servient property, and more particularly also your claim
that such third person’s ‘use the road to the tower
illegally … ‘.

As regards the restrictions which are imposed and enforced over
what is a proclaimed public road, you have not reverted to us, save
to indicate that you intend to apply for the deproclamation of the
road. Until the access road has been so deproclaimed (our client’s
rights in this regard are reserved), there is, as far as we can
establish, no basis in our law under which the owner of Regenstein or
its shareholders or the members of your Association would have any
right to control, restrict or deny the public the right to travel on
that road.

The current controls and regiment at the gate to the farm
constitute a serious infringement on persons who have every right to
enter Regenstein on that public road and to access to the
Grosshertzog site. In this regard, two recent incidents have been
brought to our clients' notice. …

… This then serves to request you to
provide us, by return of fax, with an undertaking that all
restrictions at the entry gate will be lifted immediately and that
our client and those required or entitled to have access to the
Grosshertzog site shall have the right to travel on the proclaimed
road leading to and on the stretch of road which is the subject of
the servitude registered against the servient property without
further constraints or interference.

Failing your undertaking, our instructions are to institute legal
proceedings for such relief as is necessary to secure our client's
rights and the rights of third persons affected by the restrictions
you impose and enforce…”.

[36] Mr Koep, now in the capacity as legal practitioner for the First
and Second Respondents, in the letter of 29 April 2009, responded by
setting out his client’s stance in the following terms :

“ … Our Instructions therefore are to
inform you that the situation, as we understand (it) is the
following;

1. 
   Our clients recognise that your client, Telecom Namibia Limited,
   has a right to access its installation situated on the property with
   Title Deed1646/74. We say this without prejudice, as it is not clear
   in terms of the law whether Telecom Namibia is, in fact, the
   equivalent of the Government of the Territory of South West Africa
   or its successor in title, being the Government of the Republic of
   Namibia.

   
   

2. 
   The servitude is registered in favour of the Government and no
   one else. Under the circumstances your client is not entitled to
   sublet, as it were, its servitude to the Namiblan Broadcasting
   Corporation.

   
   

3. 
   Your client, Telecom Namibia Limited, has apparently entered into
   agreements with those parties who have erected installations on the
   property with Title Deed 1613/86 and has allowed them access over
   our clients' property without our clients' consent. Furthermore,
   your client has allowed them to erect installations contrary to the
   terms imposed by the Title Deed. Again, we point out that there is
   no servitude registered In favour of Title Deed 1613/86.

   
   

4. 
   All the parties that have erected installations on the property
   with Title Deed 1613/86

   
   

1. 
   access that property illegally; and

   
   

2. 
   have erected installations Illegally.

   
   

5. Under the circumstances we do not agree with the assertions
made by you in your letter under reply and should you wish to bring
an application to Court, this will be opposed and our clients then
reserve the right to apply for the appropriate Order against your
client, as well as all the other parties mentioned above and for the
reasons stated therein…”.

[37] As the sought undertaking was not forthcoming, Applicant then
instructed the preparation of this application.

[38] Against this background the Respondents denied that any
infringement occurred, or is or was threatened or that they
unlawfully closed or barred or prohibited access of the public to
farm Road FR 1425. They state that Applicants have failed to allege
that the road in question was ever intended or used by the broader
public and that the Applicant has been admitted to access in terms of
an arrangement in respect of which a settlement of all outstanding
issues was unfortunately not reached.

[39] Counsel for Respondent’s ultimately submitted that the
Applicant’s case boiled down to the sole complaint ‘that
the Respondents fail to recognise the subleases in terms whereof the
Applicants leases portion 17 to its so called operators to set up
structures contrary to the clear restrictions of the title deed of
portion 17’. They state that, save for the refusal to recognise
these lease agreements, no case whatsoever has been established by
the Applicant that the Respondents have infringed the Applicant’s
rights to make use of the road in question.

[40] It must be clear that the determination – whether or not
the above sketched events amount to ‘an injury was actually
committed or reasonably apprehended’ – must be made
against the applicable provisions of the Roads Ordinance.

[41] The Ordinance affords the Applicant, its tenants and the public
an unlimited right of access to FR 1425. Section 48(1) of the
ordinance expressly prohibits the ‘closing or otherwise
barring’ of a proclaimed public road against passage without
the consent of the ‘Executive Committee’.

[42] No such consent has been given in respect of proclaimed road FR
1425.

[43] It is common cause that a security gate has been erected across
FR 1425 to control access to the Farm Regenstein and the housing
estate located on it.

[44] This gate is closed at all times.

[45] The gate is manned by security personnel. Access is only granted
by such security personnel once a register has been completed and the
security personnel consent thereto. Access can apparently also be
granted on the express instructions of a particular resident to the
security personnel.

[46] Employees of the Applicant, its tenants and members of the
public thus do not have unhindered access – they are not
allowed to open and close the gate themselves.

[46] It becomes clear that the closing of the gate in order to
control access and the conditional opening thereof at the pleasure of
security personnel or residents most certainly obstructs/bars FR 1425
against free and unhindered passage.

[47] Free passage to FR 1425 is barred/obstructed at least in the
sense that of members of the public are not granted free and
unhindered access and freedom of passage; as members of the public
are dependant on the security personnel or residents to grant them
access through such gate.

[48] In these respects at least the Respondents have ‘closed or
barred’ the proclaimed public road FR 1425 in contravention of
Section 48(1) of the Roads Ordinance.

[49] The Applicant has thus established the requirement of ‘an
injury actually committed’.

[48] In addition, and even if I am wrong in coming to this
conclusion, it becomes more than abundantly clear through the
correspondence emanating from the pen of the Chairman of First
Respondent and legal practitioner of both Respondents’, as
quoted above, that Respondents most certainly have an issue with the
Applicants’ tenants from making use of the proclaimed road, in
that they - for instance viewed – ‘the applicant’s
presence and that of [its] employees and/or service providers as a
threat to the security of the estate’ – in that they
regarded the seeking of access, by one of the Applicant’s
tenants, as engaging in behaviour ‘which may exasperate an
already illegal situation and conduct’ – and by
adopting the stance that the Applicant was not entitled to lease out
the property it owns and thus by stating that ‘all the
parties that have erected installations on the property with Title
Deed 1613/86 access that property illegally’ – as
a result of which the threat is made that ‘should you
(applicant) wish to bring an application to Court, this will be
opposed and our clients then reserve the right to apply for the
appropriate Order against your client, as well as all the other
parties mentioned above and for the reasons stated therein’.

[49] Most importantly Respondent’s failed to give the
undertaking that all restrictions at the entry gate (on FR 1425)
would be lifted immediately granting the Applicant and its tenants
access to the Grosshertzog site and by allowing them ‘ …
the right to travel on the proclaimed road leading to and on the
stretch of road which is the subject of the servitude registered
against the servient property without further constraints or
interference’.

[50 In this regard I find that the Applicant has also, at the very
least, established the requirement of ‘a reasonable
apprehension of injury’.

[51] I therefore conclude that the Applicant has also satisfied the
second requirement for the granting of the sought interdict.

NO ALTERNATIVE REMEDY

[52] In this regard the Applicants allege simply that they have no
adequate alternative remedy.

[53] The Respondents on the other hand state that the criminal
sanction imposed by Section 48 (2) of the Roads Ordinance constitutes
an alternative adequate remedy and it was submitted further that
Section 50, in addition, provides for clear alternative relief.

[54] Section 48(2) clearly amounts to a criminal sanction. I don not
think that such a criminal sanction amounts to an adequate legal
remedy in the circumstances of this matter as it does not afford the
Applicant similar protection as the civil relief, sought herein,
would do.

[55] Section 50 of the Road Ordinance 17 of 1972 provides as follows:

“(1) The Executive Committee may direct
the owner or erector thereof, within 7 (seven) days thereof, within 7
(seven) days thereafter to remove –

1. 
   any fences, swing gates, motor grid gates and other obstructions
   erected on, across or along a proclaimed road contrary to the
   Provisions Ordinance ...; or

   
   

2. 
   any swing gate which, in opinion which and if the opinion have
   been erected on/or across a proclaimed road at an unsuitable place.”

   
   

[56] The first relevant aspect to be taken into account in this
regard is that the Applicant no longer seeks an order for the removal
of the gate erected at the entrance to FR 1425.

[57] At the centre of the Applicants complaint is the Respondents
unlawful use of the gate, in respect of which the Applicant now seeks
to interdict the Respondents from deploying such gate in an unlawful
manner.

[58] Secondly it would appear that the Applicants complaint is also
not that the Respondents gate has been erected contrary to the
provisions of the Road Ordinance, or that such gate has been erected
on or across a proclaimed road on an unsuitable place.

[59] The provisions of Section 50 of the Roads Ordinance can thus not
be of application in the present instance and thus cannot be of
assistance to the Applicant herein and thus cannot sustain
Respondents submission that Section 50 of the Roads Ordinance
constitutes an alternative adequate remedy for the Applicants herein.

[60] As also the third requirement for an interdict has thus been met
it must be concluded that the Applicant has made out a case in so far
as the relief sought in prayer 1 of its Notice of Motion is
concerned.

THE INTERDICT SOUGHT IRO THE SERVITUDE ROAD

[61] Here the Applicant seeks an order “interdicting and
restraining First and Second Respondents from hindering the access of
the Applicant and its lessees from making use of the servitude route
registered in favour of portion 12 of the farm Regenstein no. 32 over
the First Respondents property portion 9 of farm Regenstein No 32 …
“.

THE CLEAR RIGHT RELIED UPON

[62] Here it is firstly of relevance that it is common cause that the
Respondents do not obstruct the Applicant’s use of the
servitude road.

[63] The Respondents however admittedly, in the absence of their
consent, impede access of the Applicant’s tenant’s to the
servitude road.

[64] Accordingly - and at the centre of the determination of whether
or not the Applcant is entitled to the interdictory relief sought in
prayer 3 of the Notice of Motion - is the question whether or not the
Respondent’s admitted obstructive conduct is lawful or
unlawful.

[65] The answer to this question lies in the rights conferred by the
servitude in question

[66] The servitude which is endorsed on the title deeds of both the
dominant and the servient tenements herein is described in the title
deed of the dominant tenement as being:

“A servitude of right of way 18.29 metres
wide over the remaining extent of portion 9 of the farm Regenstein
no. 32.:

[67] In the title deed of the servient tenement it is described as
being:

‘further subject to a servitude of right
of way of 18.29 (...) metres wide ... in favour of portion 12 (a
portion of portion 9) of the farm Regenstein no. 32, ... which
servitude is endorsed against deed of transfer no. 2896/1965.’”

[68] It is apposite to mention here that – initially - a
substantial portion of the dispute between the parties also focussed
on the question of whether or not the referred to servitude had been
extinguished by merger. However - and at the hearing of this matter -
Mr. Heathcote indicated that the Respondents abandoned this leg of
their defence.

[69] It is further important to note that - although it was initially
disputed - it soon became apparent that the parties were actually
also ad idem that the servitude in question is a praedial servitude.

[70] Whether or not any infringement of the rights granted in favour
of the Applicant and its tenants has occurred must therefore be
determined with reference to the rights conferred by the praedial
servitude in question.

[71] Mr Frank submitted on behalf of the Applicant that the
Respondents’ stance is not permissible. In this regard the
argument ran that

1. 
   “... a servitude, on the one hand, means a
   reduction or diminution of the rights of ownership pertaining to the
   servient tenement but that on the other, this was not to be regarded
   as a diminution of the rights of ownership in respect of the
   dominant tenement. One of the incidents of ownership of Applicant’s
   portions 12 and 17, was the right to utilise these properties as
   owners and one of the things that an owner may do in regard to his
   property is to enter into lease agreements in respect of such
   property. Such lessees should then, as a matter of course, have
   access in similar fashion as Applicant to the properties in
   question, as such tenants rights derive from those of the Applicant.

   
   

2. 
   Had the servitude been a personal one, so the argument ran further,
   that position might have been different, however being a praedial
   servitude, it attaches to the property, and anyone, that has the
   right to be on such property, can thus use the servitude road to
   gain access to such property.

   
   

[71] Reliance was placed on a passage from Wille’s Landlord
and Tenant of South Africa, 5^th Edition, at page 17
where the learned author states:

“Where property is subject to a
servitude, the owner of the property, it is submitted, has sufficient
title to grant a lease of it if the servitude is of such a nature
that its use and enjoyment will not be interfered with by the
existence of the lease or by the exercise of the rights under the
lease. This would, as a rule, be the case where the servitude is a
preadial one, but not where it is personal, such as a usufruct, in
which case, as will be seen directly, it is the usufructuary who is
entitled to grant a lease.”

[72] It was on the strength of this submitted that
the Respondents’ stance - that the Applicant was allowed to
lease out its property - but was not allowed to give someone access
to that property – was clearly incorrect. It was thus argued
further that‘ … just like owners – a lessee would
be entitled to obtain access for – ‘ … the
members of his household, his guests, his table companions, hirelings
and medical attendants along with him’.⁵

[73] On behalf of the Respondents on the other hand it was in the
first instance disputed that the evidence properly established that
the Applicant, by operation of statute, as alleged, had become the
owner of portions 12 and 17 of the farm Regenstein. This line of
argument was based on the title deeds annexed to the founding papers.

[74] In such founding papers the Applicant had however already
indicated that the requisite endorsement in respect of Portion 17 -
at the time - was still in the progress of registration.. That such
endorsement was subsequently effected on 13 July 2009 was proved by
the requisite title deed annexed to the replying affidavits. It was
also explained in such replying papers that the page reflecting the
requisite endorsements to the title deed of Portion 12 had
inadvertently not been copied and was therefore now annexed in reply.
It appeared from that annexure that the endorsement and thus transfer
of ownership of portion 12 of the farm Regenstein to Applicant was
effected on 8 May 2009 - that was prior to the launching of this
application.

[75] Although I am alive to the fundamental rule
that ‘an Applicant must stand and fall with the allegations
made in the founding papers’⁶
I am prepared to exercise my discretion⁷
– in so far as this may be necessary –
in favour of the Applicant – by taking into account the relied
upon annexures to the replying papers - and thus by accepting and
finding that the Applicant was able to prove its ownership of
Portions 12 and 17 of the farm Regenstein – after all it has
appeared that the founding papers did already lay the basis for this
essential facet of the Applicant’s case.

[76] It was more importantly contended on behalf of Respondent’s
that the only structure erected on Portion 12 was a microwave tower
to which the Applicant and its predecessor had always enjoyed access
via the servitude road. No such servitude – and thus no rights
conferred by any servitude exist in respect of Portion 17. Yet is was
in respect of portion 17 that the Applicant had granted certain
leases to ‘other players in the telecommunications industry’
who

- the Applicant now claims - are unlawfully barred from making use of
the servitude road to allow them to gain access – via Portion
12 - to Portion 17.

[77] It was thus submitted further that no right
of way ever existed in respect of portion 17 and when the Applicant
allowed its tenant’s to make use of the servitude road it was
also exercising its rights ‘inciviliter
modo’ as the Applicant had thus
unduly thereby increased the burden on the servient tenement in this
regard..

[78] In addition it was pointed out that the
Applicant was in breach of the title deed condition in terms of which
it was : ‘ ... restricted from
erecting further buildings on the withinmentioned property except for
farming purposes ... ‘.

[79] It can immediately be said that it does not
appear from the affidavits filed of record that the Applicant or its
tenants have ‘erected any buildings⁸’
on Portion 17. What seems to have been erected are
certain ‘ ... apparatus and
installations - such as towers/masts and receivers for the purpose of
transmitting and receiving signals ... ‘.
I am thus not persuaded that Applicant has acted contrary, and thus
is in breach of its title deed restrictions/conditions.

[80] What remains to be determined is whether of not the Applicant is
entitled to afford its tenants access to Portion 17 via the servitude
road granted in favour of Portion 12.

[81] Relevant also to this enquiry is the
Applicant’s entitlement to seek the enforcement of any rights
it might have vis a vis its
tenants.

[82] The court was referred in this regard to the
leading decision – also in Namibia⁹
on this point of United
Watch and Diamond Co (Ptv) Ltd and Others v Disa Hotels Ltd &
Another 1972 (4) SA 409 (C) at 417 A to
C. Were Corbett J (as he then was) stated :

“”The Interest of a sub-tenant in
regard to actions for ejectment against the tenant at the suit of the
landlord (owner) has been discussed in several cases and the
generally accepted view is that the sub-tenant has no legal Interest
in the contract between the landlord and the tenant –

‘ ... although he may have a very
substantial financial or commercial interest therein which may be
prejudicially affected by the judgment’.

(See Henri Viljoen (Pty.) Ltd. v Awerbuch Brothers, supra at p.
167). This , with respect, would seem to be the correct approach. The
subtenants’ right to, or interest in, the continued occupancy
of the premises sub-leased is inherently a derivative one depending
vitally upon the validity and continued existence of the right of the
tenant to such occupation. The sub-tenant, in effect, hires a
defeasible interest. (See Ntai & Others v Vereeniging Town
Council and Another, 1953 (4) SA 579 (AD) at p. 591). He can
consequently have no direct legal interest in proceedings in which
the tenant’s continued right of occupation is in issue, however
much the termination of that right may affect him commercially and
financially.’”

[83] It appears thus that the dispute regarding the entitlement of
the use of the servitude road is a dispute which correctly lies
between Applicant and the Respondents and that any rights which
Applicant’s tenants might have acquired are merely derivative
in nature which will stand or fall with the determination of the
Applicant’s entitlement in this regard.

[84] Regarding the question of whether or not the
Applicant’s right of way to Portion 12 could be extended to
Portion 17 a useful point of departure is the recent South African
Court of Appeal judgement of Ethekwini
Municipality v Brooks & Others 2010
(4) SA 586 (SCA) in which Griessel AJA stated¹⁰
– the other members of the Court concurring
- :

“When it comes to a servitude of right of
way it is important to bear in mind that it enures not only to the
servitude holder, but, as it was put by Voet, 5 also to 'the members
of his household, his guests, his table companions, hirelings and
medical attendants along with him'. This passage in Voet does not
purport to create a watertight numerus clausus of parties entitled to
make use of a servitude road. Thus, Maasdorp 6 paraphrased the above
passage as follows:

(S)ervitudes . . . may be made use of, not only by the owner of
the dominant tenement, but by anyone who has a legal right to be upon
the dominant tenement, such as servants, guests, visitors, labourers,
etc.' ... “.

[85] This seems to be the generally applicable
position.¹¹

[86] As there is no numerus
clausus of parties entitled to make use
of a servitude road for as long as there is a nexus to the servitude
holder – it must be concluded - pre-supposing the Applicant’s
consent, given the Applicant’s contractual obligation to afford
its tenants access to the leased premises - that the Applicant’s
tenants here – would – at least in principle - be
entitled to lawfully access- and lawfully traverse to Portion 12. It
follows that Applicant’s tenants, generally would be able to
make use of the servitude road to that extent – but to that
extent only.

[87] It would appear however that this entitlement has its
‘boundaries’.

[88] The applicable legal position was considered
by the Durban and Coast Local Division in Berdur
Properties (Pty) Ltd v 76 Commercial Road (Pty) Ltd 1998
(4) SA 62 (D) in which Alexander J, with reference to the Cape
Provincial Division decision of Rabie v
De Wit ¹²
per De Villiers J and Duncan AJ had this to say :

“The point before De Villiers J was a
novel one, but he found guidance in Louw v De Villiers (1893) 10 SC
324, where it had been held that the owner of the dominant tenement
cannot transfer the benefit of that servitude to H another tenement
belonging to him without the consent of the owner of the servient
tenement. There was support for this proposition in Voet 8.4.13 -
'when a man has the right of waterleading he cannot by nature of this
right grant the water to another estate unless by the agreement he
was expressly allowed to do so . . .'. Although Voet was dealing with
aquaeductus, De Villiers J found the restriction equally applicable
to servitus viae and in the result upheld the plaintiff.

It is urged on respondent's behalf that the facts in this case are
distinguishable. In Rabie's case the servitude was entirely over the
property of the plaintiff, the servient tenement, and the increased
use by the defendant as owner of the dominant tenement 'increased the
burden

on the servient tenement entirely owned by the plaintiff'. In this
case, so the submission goes, the right of way is reciprocal to both
applicant and respondent, and therein lies the difference.

With due respect to the argument, I find the distinction
unpersuasive. It matters not, in my view, that the servitude B
extended only over the property at A. It was designed to serve the
interests of B. The ratio of the decision was that the owner of B
could not add to the extent of the rights so conferred on his
property by allowing another property not so entitled, to utilise
them. As Silberberg and Schoeman comment in The Law of Property 3rd
ed at 377, '. . . the benefit of a servitude cannot be severed from
the land to which it is attached'.

The fact that the servitude under discussion is
said to be for the use of the adjacent owners lends added weight, in
my opinion, to the observations of De Villiers J in Rabie. It is
their use which the servitude is intended to serve - not somebody
else's.”¹³

[89] In my respectful view these decisions set out the applicable law
correctly.

I come to this conclusion not only because the
referred to decisions are in line with the characteristics peculiar
to praedial servitudes
but also as – in this instance – this would also accord
with the canons of construction applicable to this type of
agreement.¹⁴

[90] Portion 12 was acquired by Applicant’s predecessor in
title during 1974 and with it, the servitude in question. Portion 17
– not subject to any servitude of right of way - was acquired
only during 1986...

[91] Not only on application of the principle that – in the
absence of any agreement to that effect - the owner of a dominant
tenement (B) cannot use a servitude over (A) in respect of a property
(C) subsequently acquired by him, but also on the interpretation of
the agreement conferring a servitude of right of way expressly in
respect of Portion 12 only – Portion 17 not yet being within
the contemplation of the parties, it must follow that the Applicant
cannot show the clear right required for the granting of the relief
sought in prayer 3 of the Notice of Motion. This leg of the
application must therefore fail.

[92] In view of this finding it becomes
unnecessary to consider the other pre-requisites for the granting of
a final interdict or whether or not the Applicant exercised its
rights of use of the servitude road inciviliter
modo.

THE CLAIMED VIA EX NECESSITATE

[93] The applicant also indicated in its application that insofar as
there is no servitude in existence, it would apply for a via ex
necessitate in respect of access to its property. It was
submitted that applicant is entitled to such via ex necessite
based on the conditions imposed by the initial Government Grant of
the property No 79/1930 which has been kept in the title deed and is
still part of the title deed of the property of the first respondent
which reads :

“ That all roads, thoroughfares and
rights of outspan being or existing on the land hereby granted shall
remain free and unencumbent unless the same be cancelled, closed or
altered by a competent authority.

That the grantee shall be required to grant any adjacent or
neighbouring proprietor a way of road of necessity over the land
hereby granted to or from the land of such adjacent or neighbouring
proprietor.”

[94] In any event it was submitted with reference
to the leading decision of Van Rensburg
v Coetzee¹⁵
that the applicant had also made out a case based
on the common law as it was clear that both these properties are
landlocked with no other access to the main road and that the
applicant was obviously entitled to have access to a main road.

[95] Reliance was placed upon the Headnote which reads :

“A claim to a way of necessity arises
when a piece of land is geographically enclosed and has no way out,
or, if a way out is available, it is however inadequate and the
position amounts to this that the owner "has no reasonably
sufficient access to the public road for himself and his servants to
enable him, if he is a farmer, to carry on his farming operations".
Without an order of court this claim does not make the registration
of a right of way of necessity in respect of another person's land
possible; and, further, before such order is obtained, entry on the
other person's land will apparently be unlawful.¹⁶

[96] The Respondent’s did not seriously dispute the Applicant’s
claim to a via ex necessitate. This is not surprising as all
the pre-requisites for a right of way of necessity in respect of
Portion 17 are factually given.

[97] It follows that the Applicant’s alternative claim for a
via ex necessitate in respect of Portion 17 of the Farm
Regenstein must succeed.

[98] It was rather submitted that the proposed N$500.00 per month was
hopelessly inadequate to maintain the road and to adequately
compensate the Respondents for its use.

[99] On behalf of Applicant on the other hand it was submitted that a
case had been made out that the compensation offered was reasonable.
In any event the Respondents had failed to effectively dispute the
Applicant’s case in this regard.

[100] It does indeed, in the first instance, appear from the
affidavits exchanged that there is substance in this submission, as
the parties delineated their respective positions as follows :

• 
  THE RESPONDENTS
  

  
  

“I deny that the Applicant is entitled to
a servitude by way of necessity because of its ownership of Portions
12 and 17. This cannot, with respect, happen at the cost of the
Respondents and without their consent. The so called N$500.00 per
month tendered in the additional affidavit smacks of brutal
bureaucracy. No evidence as to the reasonableness of such an amount
is even remotely established. Applicant is in fact, highly secretive
of the number of lessees it has, or what the financial arrangements
with such lessees are. N$500.00 per month is hopelessly inadequate to
maintain the road, and to adequately compensate Respondents for the
servitude by numerous users.”

THE APPLICANT IN REPLY

“The reference to the offer of N$500.00
per month as smacking of “brutal bureaucracy” is as
inexplicable as it is baseless. The attempt to justify the
extravagant language in the last sentence of this paragraph by
stating that it is hopelessly inadequate to maintain the road and to
compensate for the servitude by numerous users is misleading and
negates the context and terms of the offer. I refer to paragraphs 3
and 4 Ms Aspara’s supplementary affidavit where this aspect is
dealt with. The offer of compensation relates to the use of the
portion of the route from the point of (deviation from) the
proclaimed road to Portion 17. As is stated by her, this portion is
not used by the respondents or their members. It is the route from
the proclaimed road to Portions 12 and 17. Furthermore, she stated
that the applicant undertakes to maintain this segment of the road.
There is thus no question of any cost of its maintenance by the
respondents. The reference to the sum being hopelessly inadequate to
maintain the road is thus a gross distortion. (The applicant
constructed the cement road and has always maintained it). The sum
was thus tendered for the use of the non-proclaimed portion of the
route to the tower which the applicant would maintain. The
respondents’ cavil about the amount is thus exposed for what it
is – baseless and misplaced.”

[101] This exchange must then also be viewed
against the general principles applicable to the quantification of
such compensation as set out in the Headnote of Van
Rensburg v Coetzee¹⁷
from which it appears that this aspect is
determined as follows:

“Normally, there is no suggestion of
compensation for the way of necessity precario, but there is for the
way of necessity which is acquired as a full right of way (jus viae
plenum). Apparently the conferring by the court of a jus viae plenum
should be regarded as a kind of expropriation of a right and the
measure laid down by Glück, namely "the compensation must
be in proportion to the advantage gained by the plaintiff and the
disadvantages suffered by the defendant", should be viewed in
the light thereof. Special damages which the owner suffers as a
result his being partly "expropriated" will also be taken
into account.¹⁸

[102] It appears further from the judgment and
with reference to Voet that
the compensation should be ‘justum’
and that the aim of the compensation should
ultimately be to achieve a ‘justum
pretium’.¹⁹

[103] It must be kept in mind and it goes almost
without saying that the Applicant is correct in stating that any via
ex necessitate would follow the route
of the existing servitude road and that ’the
offer of compensation relates to the use of the portion of the
existing route from the point of (deviation from) the proclaimed road
FR 1425 to Portion 17’. In the
premises of this matter it seems almost superfluous to state that
this would also obviously be the route "ter
naaster lage en minster schade"

[104] It must be accepted that the servitude road to Portion 12 -
over which any via ex necessitate to Portion 17 should lie - is in
existence and has been so for many years. It is a concrete road which
will be used almost exclusively by the Applicant and its tenants. It
is also a road which has been maintained at no cost to the
Respondents for all these years. The Applicant has undertaken to
continue to maintain this road. So what compensation should attach
thereto?

[105] Again the Headnote to Van
Rensburg v Coetzee²⁰
is instructive. It states :

“If the plaintiff offers an amount and
the defendant is not satisfied therewith, the defendant will
certainly have to submit information which shows that the amount is
not justum - unless he wants to run the risk of the court awarding
the amount offered - and, if he has suffered any special damages, he
will have to prove it. Basically, the rule will in general amount to
this that each party must prove those facts upon which he relies for
the determination of the value, and the usual civil onus will apply
in this connection. But at the end of the case the court will, as
best it can, determine a value on the available information.

[106] It is clear in this instance that the Respondents are not
satisfied with the amount offered. They also have not adduced any
facts in the answering affidavits against which a determination of
any value can be made, nor have they proved that they have suffered
any special damages.

[107] In the Heads of Argument filed on behalf of Respondents it is
submitted that :

“The proposed N$500.00 per month for the
right of necessity is, apart from being misplaced in law, (is)
hopelessly inadequate to maintain the road in question. Respondents’
requirement of N$3,500.00 per month is minimal compared to what the
Applicant charges its lessees. The Respondent’s offer of
N$500.00 per month is plainly unfounded in law.”

[108] Counsel for the Respondents rely in this regard on a draft
agreement - annexed to the answering papers - which apparently was to
be concluded between Mobile Telecommunications Limited and First
Respondent - from which – upon closer scrutiny - it becomes
apparent that the relied upon amount of N$ 3500.00 per month is
actually the rental that would have been charged for the entire
‘site’ – the ‘site’ having been defined
as the ‘mobile transmission site situated on the farm
Regenstein and includes, where the context so allows, all permanent
improvements on the site’ .By that same token it becomes
apparent from the referred to draft rental agreement that the concept
‘rentable area’ is defined to mean - ‘ in
relation to the site or any part of the site means the allocated area
on Gross Herzog Mountain’. Not surprisingly it is then
recorded further in the draft lease that - ‘the Lessor lets
and the Lessee hires the Site on the terms of the lease’
and the Lessee - in respect of which – ‘the rent shall
be N$3500.00 for each month’.

[109] Although the lease agreement - not surprisingly - also
regulates the

‘Lessees right of Entry and Carrying out
of Works’ – a basic
requirement to any lease – it becomes apparent that the amount
of N$ 3500.00 was never intended - does not - and cannot constitute a
yardstick against which - a ‘justum
pretium’, for the use of a via
ex necessitate, can be determined.

[110] Even if counsels’ submissions were to be accepted, and if
the rental value, attached by the Respondent’s to the renting
out of the entire ‘site’ is anything to go by, it almost
follows that any value to be attached to the use of a short stretch
of the existing road - ie. the value of the route from the point of
(deviation from) the proclaimed road FR 1425 to Portion 17 –
must be far less.

[111] It is clear that the Respondents – by failing to submit
information which would have shown that the amount of N$ 500.00 is
not justum - have taken the risk of the court awarding the
amount offered. This amount is therefore awarded.

[112] Lastly and given my findings in this matter I deem it proper to
award the costs of suit to the Applicant on the basis that it was the
Applicant that has been ‘substantially successful’ in its
claims against the Respondents

[113] In the result the following relief is granted :

1. 
   The First and Second Respondents are interdicted and restrained from
   hindering or restricting the access of the Applicant, its employees
   and its lessees to Road FR 1425 in any way whatsoever, included in,
   but not limiting such interdict, the Respondents are also
   specifically interdicted from operating and closing a gate at the
   commencement of such road located at or near the trunk road between
   Windhoek and Rehoboth;
   

   
   

2. 
   A servitude of way of necessity - in favour of Portion 17 of farm
   Regenstein No 32 - over Portion 9 of farm Regenstein No 32 –
   with the same extent and route of the servitude and set out in the
   same terms as the right of way already registered in favour of
   Portion 12 of farm Regenstein No 32 over Portion 9 of such farm as
   set out and registered in the Deeds Registry in annexure “B1”
   to the founding affidavit - is hereby granted;
   

   
   

3. 
   The Applicant is directed to compensate the First Respondent in the
   amount of N$ 500.00 per month for the use of the servitude of way of
   necessity granted in paragraph b) above;

   
   

4. 
   The First and Second Respondent’s are ordered to pay the
   Applicant’s costs of suit, jointly and severally, the one
   paying the other to be absolved, such costs to include the costs of
   two instructed and one instructing counsel.

   
   

_____________________

GEIER,
AJ

Counsel for Applicant: Adv TJ Frank SC

Adv R Maasdorp

Instructed by: LorentzAngula Inc

Counsel for Respondent : Adv R Heathcote SC

Adv J Schickerling

Instructed by : Koep & Partners