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Friday May 11, 2012

Langebaan residents win back ancient right

Langebaan residents have won a victory in the Western Cape High Court which has ruled that a private landowner must reopen the old "white road" that runs along the lagoon.

The landowner, Dormell Properties 391, had closed the road, which ran over private land.

The Langebaan Ratepayers' and Residents' Association took the matter to court, arguing a public right of way had existed since time immemorial along the gravel road - called the "white road" because of the colour of the sand of which it was made.

The legal argument the residents used was to prove vestus or immemorial usage.

In terms of this ancient legal concept, a public servitude can come into being, and have valid title, even if there is not written proof of the validity of the rule.

The association argued that the public had enjoyed this right of way unencumbered for generations. Closure of the road not only prevented the public from using it as a thoroughfare, but also prevented the public from getting access to the beaches in the area.

Residents referred to the book The Saldanha Story by Jose Burman and Stephen Levin, which contained maps showing the earliest route from Cape Town in the south was along the shores of the lagoon, traversing a section of the present-day white road. This route was used as early as 1795.

A farm at Langebaan, Oostewal, then called Gietenborgsfontein, served as a delivery point for grain, which meant farmers must have travelled on the white road to deliver grain.

The court ruled that the landowner must reopen the white road, that he was not permitted to close it and that a public servitudal right of way, "constituted by ancient use", exists in favour of the public.

Cape Times

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