A private road is defined as one that is not open to the public and is intended for the use of specific individuals, such as the owners or occupiers of the properties it serves. The term “private” inherently excludes public access, as established in Berdur Properties (Pty) Ltd v 76 Commercial Road (Pty) Ltd, where the court held that a private road is “not open to the public” and is restricted to the use of particular and privileged persons. This interpretation aligns with the ordinary meaning of “private” as found in authoritative dictionaries and legal precedents.
What Constitutes a Public Road?
Conversely, a public road is one that is commonly used by the public or a section thereof, or to which the public has a right of access. The definition of a public road under South African law includes any road, street, or thoroughfare that is habitually used by the public without requiring the owner’s consent. This definition is supported by various legislative texts, including Ordinance 21 of 1966, which specifies that public roads include roads commonly used by the public or a section thereof, but only if the public has a right of access.
Public Use vs Right of Access
Case law establishes that mere public use of a private road does not automatically confer public road status. In S v Christodoulou, the court held that public use must be accompanied by a right of access to qualify as a public road. Tacit permission or courtesy extended by the owner does not suffice to establish such a right.
When a Private Road Can Become Public
In Maclear Divisional Council v Norton, it was held that a road can become public through long-term public use, provided it meets the criteria of prescription or immemorial use.
The principle of prescription allows a road to acquire public status if it has been used by the public for an extended period without interruption. In Wilhelm v Norton, the court noted that roads used by the public since “times immemorial” could be treated as public roads, even without formal proclamation, provided there is evidence of uninterrupted use and public benefit.
Another factor that may indicate a road’s public status is the expenditure of public funds on its maintenance. Courts have recognised that when public money is spent on a road, it may imply dedication to public use, as seen in Wilhelm v Norton.
Servitudes and Rights of Way
The creation of a servitude, such as a right of way, may grant specific rights of access over private property in favour of a servitude holder. However, such servitudes must be explicitly established, typically through a notarial deed and registration against the title deeds of the affected properties. In the absence of such a servitude, the public cannot claim a right to use a private road.
In the case of Berdur Properties, the court emphasised that the benefit of a servitude cannot be extended to parties beyond those explicitly entitled to it. The use of a private road by individuals not authorised under the servitude would constitute an unlawful extension of the servitude’s scope.
The Property Owner’s Right to Control Access
The property owner retains the right to control access to their private road unless a legal obligation, such as a servitude or statutory provision, dictates otherwise. In the absence of evidence that the road has been dedicated for public use or that a public servitude has been established, the public has no inherent right to use the road. The principle of “civiliter modo” requires that any use of a servitude or access right must respect the property owner’s rights and cause minimal inconvenience.
When a Road Remains Private
In the absence of a servitude or statutory provision granting public access, the road created by the property owner for personal use remains private and is not open to public use. The property owner retains the right to restrict access to the road. Any unauthorised use by the public would infringe upon the owner’s property rights.
This conclusion is supported by the legal principles and case law discussed above.
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