Court name
High Court Main Division
Case name
Neves v Arangies
Media neutral citation
[2016] NAHCMD 271
Judge
Miller AJ










REPUBLIC
OF NAMIBIA


HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


JUDGMENT


Case
no: I 3785/2012


DATE:
5 SEPTEMBER 2016


NOT
REPORTABLE


In
the matter between:


JORGE
MANUEL BATISDA
NEVES...........................................................................1ST
PLAINTIF


MARIA
ALZIRA ALVES BATISDA
NEVES
............................................................2ND
PLAINTIFF


And


RAINIER
ARANGIES...............................................................................................1ST
DEFENDANT


COUNCIL
FOR THE MUNICIPALITY OF
TSUMEB
........................................2ND
DEFENDANT



Neutral
citation:
Neves v Arangies (I
3785-2012] [2016] NAHCMD 271 (05 September 2016)


Coram:
MILLER AJ


Heard:
05 September 2016


Delivered:
05 September 2016 (Ex
tempore
)


ORDER


In
the premises I make the following order:


1.
The application for absolution from the
instance is dismissed with costs.


2.
The costs will include the cost of one
instructing and two instructed Counsel.


JUDGMENT


MILLER
AJ:


[1]
In this matter the plaintiff instituted action against the defendant
claiming that he had acquired an acquisitive right of way through
prescription over a portion of a property belonging to the defendant,
(the 1
st
defendant that is). As an alternative, the plaintiff seeks an order
establishing a right of way over the premises.


[2]
At the commencement of the trial, an inspection was held where the
properties are situated in Tsumeb. These were recorded and handed in
as an exhibit during the course of the trial. I am not going to deal
in details with that because it is common cause that on the street
side of plaintiff’s property, a shop had been erected and at a
later stage a residential unit had been erected at the back of the
shop.


[3]
It is also apparent that by nature of the construction of the shop
and the adjoining shops, there is no vehicle access to the
residential property house via the adjoining street. At the very end
of plaintiff’s property is a largely vacant piece of land which
was at some stage owned by a local mining company and then it was at
a later stage acquired by the 1
st
defendant. It is the plaintiff’s evidence that since the year
1973, vehicle access to and from the residential premises on the
plaintiff’s property was over the piece of that land which
presently belongs to the 1
st
defendant.


[4]
After hearing the evidence of the plaintiff, and when the plaintiff
closed its case, by Mr Barnard who appeared for the 1
st
defendant sought absolution from the instance. In support of the
application various points are raised. Firstly and relying on some
authorities which I was referred to, Mr Barnard submits that an owner
land cannot construct a building on his property in such a way that
it blocks access to their adjoining road and then thereafter claim a
right of way over his neighbour’s property.


[5]
That may or may not be good law and I expressed no opinion on it
because I find the authorities referred to although they may be a
good defence to a claim to establish a right of way does not assist
defendant where the plaintiff does not seek to establish a new right
but seeks to enforce in this case an existing right which had existed
since the year 2003 according to the plaintiff. I do not think that
an owner that has allowed a neighbour access over his property for
the period of 30 years and thus allow the right to be established to
complain that the right can no longer be exercised. On that basis the
authorities referred to by Mr Barnard are distinguishable and in my
view not applicable to the present case at least as far as the
plaintiff’s main case is concerned.


[6]
Secondly there was evidence that some time before the prescriptive
period of 30 years had run out the property of the 1
st
defendant was fenced that the gates
installed were locked. The plaintiff’s evidence is that they
were handed keys gain and access to and from the premises. Mr Barnard
submits in this regard that in fact that the gates were installed and
locked has the effect that the plaintiff’s rights to become
precarious from that point on. That may be one inference, but it is
not the only inference.


[5]
The handing over of the key to the defendant perhaps may also as an
inference be an acknowledgement of and the endorsement of the
plaintiff’s free access over the property to and from, the
residential building on the plaintiff’s property. A further
submission made was that the plaintiff’s evidence does not
cover the entire period of 30 years since on his own evidence he was
away from the property for a period of time where he lived elsewhere.
That is correct as it goes. However the totality of the plaintiff’s
evidence is that access was gained to the residential building
continuously and that in my view is probable.


[6]
If one bears in mind that it was the only access to and from the
residential building, it is highly probable that access was gained to
the residential period on an uninterrupted basis for a period in
excess of 30 years. Furthermore it was submitted that the plaintiff’s
evidence is unworthy to the extent that I should grant absolution
from the instance on that basis alone. In view of the conclusion I
have come to, I do not find it helpful to engage in a discussion in
detail on the merits and demerits of the plaintiff’s evidence.
It suffice to say that I am unpersuaded that the evidence of the
plaintiff is so unworthy that I should grant absolution from the
instance on that particular basis.


[7]
I will accordingly make the following orders:


1.
The application for absolution from the
instance is dismissed with costs.


2.
The costs will include the cost of one
instructing and two instructed Counsel.


Miller,
AJ


Acting


Appearance


Plaintiff
F Schultz


Instructed
by Neves Legal Practitioner, Windhoek


Defendant
RDT Mueller


Instructed
by Mueller Legal Practitioners, Windhoek