Way of necessity : should blokland ever be left sterile
CITATION: Van Der Merwe, C. G. 2008. Way of necessity : should blokland ever be left sterile? Journal of South African Law / Tydskrif vir die Suid-Afrikaanse Reg, 2008(1):142-151.
The original publication is available at https://journals.co.za/content/journal/ju_tsar
Jackson NO v Aventura Ltd decided in the Cape high court and its sequel in the supreme court of appeal, Aventura Ltd v Jackson NO, raise interesting questions about undeveloped mountainous agricultural properties being converted to holiday resorts or private family vacation areas without providing a sufficient exit to a public road. In the present case the dominant land concerned was landlocked or "blokland" - ie enclosed on all sides by neighbouring land without an exit to a public road. According to case law on via necessitatis this is a classic example where the owner of the dominant land would be entitled to a way of necessity to a public road in order to exploit the dominant land to its full potential. This case is, however, complicated by the fact that the property concerned as well as all the surrounding properties have been declared sensitive coastal areas in terms of regulations (reg 1526 of 27 Nov 1998) promulgated under the Environment Conservation Act 73 of 1989, which prohibit the disturbance of vegetation and earthworks in these areas and the construction of a road without the consent of the environmental authorities concerned. Consequently the court was faced with the dilemma of whether to decide the issue on common law principles alone or whether it was competent to take environmental issues into account in its decision to grant or not to grant a way of necessity.