Judgment was handed down in the Cape High Court on 8th May 2012 in the case brought by the Langebaan Ratepayers’ and Residents’ Association (LRRA – the Applicant) against Messrs Dormell Properties 391 (Pty) Ltd (the landowner and First Respondent) and Others. This follows an interim order by the Cape High Court on 24 June 2011 in response to an urgent application that pending a full hearing of the application brought against Dormell Properties by the Langebaan Ratepayers’ and Residents’ Association Dormell may not proceed with criminal charges against any member of the public relating to trespass and malicious damage to property in the matter in dispute.
The case arises from the closure by the landowner on or about 15 May 2011 of the so-called “White Road” along the Langebaan Lagoon shore to the South of the Langebaan Yacht Club and linking the town with the Shark Bay (Klein Oostewal) beaches. The road is a popular route particularly for fishermen, cyclists, joggers and walkers since it provides both beach access and beautiful lagoon vistas to the south and the south-west. Before its proclamation in the early 1960’s as a provincial road the route had been in immemorial public use since at least the late 18th century for access to the south and to the beaches in the area. The closure of the road by Messrs Dormell Properties follows an earlier unsuccessful attempt by them, also thwarted by the spirited actions of Civil Society in 2009, to erect a boom on Park Drive, the major public road and tourist route across their Restante Oostewal 292 property linking Langebaan with the West Coast National Park, and more recently the refusal by Province in April 2011 of a proposal by Dormell for the residential development of the property – the so-called “Shark Bay” development. In finding for the LRRA in the matter the Court concluded amongst others that “……the allegations and denials of fact by the respondent (the landowner – Messrs Dormell Properties 391 (Pty) Ltd) are so far-fetched that this court is justified in rejecting them merely on the papers……..”.
The court ordered accordingly that:
- Dormell Properties is interdicted and restrained from closing the section of the White Road (the gravel road) at Langebaan;
- Dormell Properties is ordered to re-open the gravel road for use by members of the public failing which the Sheriff of the High Court: Langebaan will do so;
- A public servitutal right of way, constituted by ancient use, exists in favour of the public along the route followed by the White Road (the gravel road); and
- Dormell Properties is to pay the full costs of the application.
The cost award made by the court in the matter in fact amounts to a punitive cost award.
We are informed that Dormell intends applying for leave to appeal the judgment so unfortunately the citizens of Langebaan may well have to bear further inconvenience. The terms of the original interdict of 24 June 2011 protecting users of the road from prosecution will however remain in place from the date on which the appeal is lodged until the appeal process is discharged. There have been those in the minority who have at various stages favoured attempts to negotiate a compromise before going to litigation in the “White Road” issue. However, it has been the principled position of the Langebaan Ratepayers’ and Residents’ Association that in a matter of public right there is no room for compromise and this judgment has vindicated that position. Despite this victory the unfortunate saga of Shark Bay and matters relating to it is not yet over but the LRRA has no intention whatever of standing idly by whilst the rights of the public are gratuitously infringed. We are fortified by this judgment in our conviction to see this matter through with confidence to its final and permanent conclusion and know we can rely upon wide and continued public support in doing so.
Chairman: Langebaan Ratepayers’ and Residents’ Association “