Is "historic access" a valid legal argument?

For the posting and discussion of Access Issues and Closures for Areas around South Africa.
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grae22
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Is "historic access" a valid legal argument?

Post by grae22 »

Hi everyone

I'm looking to pick someone's brain on the topic of access where the land owner has decided to bar climbers from their property.

From what I've found while trying to read up on the legislation is that the interesting points of this case are:

x Climbers have been regularly active on the property since the 70's, if not earlier.
x The land owner has had the property for many years, but has never been asked or agreed to permit access.
x The land owner does not permit access to their property for any other purpose (i.e. it is not "semi-private").

At this point it seems we have little recourse, but is there any case that can be made in our favour based on some sort of "historic access" argument?

Cheers,
Graeme
wildx
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Re: Is "historic access" a valid legal argument?

Post by wildx »

And then lose all access in the rest of the country... bad idea.
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justin
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Re: Is "historic access" a valid legal argument?

Post by justin »

In my opinion, no.

The Khoisan have raised this argument and they don't seem to be making much progress with their land claims.

What is the name of the area?
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DeanVDM
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Re: Is "historic access" a valid legal argument?

Post by DeanVDM »

The concept of a legal right of way based on historical access/paths/traversal etc. is not applicable in SA as far as I know. Search for Countryside and Rights of Way Act (CRoW Act) for info.
Read about the BMC/British Mountaineering Council's view

In many ways, I think that might be beneficial for mountaineers but the SA concept of property ownership is not aligned with that.
grae22
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Re: Is "historic access" a valid legal argument?

Post by grae22 »

Thanks Justin (have pm'd) and Dean - yeah I was hoping I'd find something vaguely akin to CRoW in our own legislation... but, nothing as yet.
mokganjetsi
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Re: Is "historic access" a valid legal argument?

Post by mokganjetsi »

the best course of action imho is to make it worthwhile for landowners to have climbers on their property i.e. most of the following:
have a permit system in place to keep track of people on their property and earn an income
administer a permit system on their behalf
behave with due care and respect
obey any rules set by the land owner (gate times etc)
leave the place pristine
hendriks
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Re: Is "historic access" a valid legal argument?

Post by hendriks »

DeanVDM wrote: Fri May 28, 2021 9:19 am The concept of a legal right of way based on historical access/paths/traversal etc. is not applicable in SA as far as I know. Search for Countryside and Rights of Way Act (CRoW Act) for info.
Read about the BMC/British Mountaineering Council's view

In many ways, I think that might be beneficial for mountaineers but the SA concept of property ownership is not aligned with that.
Unfortunately for most areas in SA this not a viable approach due to security risks that will be associated with this level of public access to private land.


Regarding the OP's post, in SA on private land including farms, the owner makes the rules. There is no way to legally compel them to give you access except if you have a registered servitude.
grae22
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Re: Is "historic access" a valid legal argument?

Post by grae22 »

Thanks mokganjetsi and hendriks.

mokganjetsi - agreed, unfortunately in this case the owner is not willing to negotiate.

hendriks - from what I've come across in case law analysis and legislation it's a little more complicated as there is no absolute right to exclude and in certain circumstances a land owner may not exclude persons from their property (even "private" property). I'm trying to find out if our scenario would qualify as one of these special cases - it does seem unlikely, though.
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justin
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Re: Is "historic access" a valid legal argument?

Post by justin »

All I can think to say is wait for a new manager to come into play... and keep at them broken record style every year or so.

In Montagu we've also been stone walled by some land owners, others willing to discuss and others we have permits available.

If all else fails, get Forket to come and have a go :pirat:
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grae22
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Re: Is "historic access" a valid legal argument?

Post by grae22 »

Yep looking like that'll be our approach for now :afro:
DeanVDM
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Re: Is "historic access" a valid legal argument?

Post by DeanVDM »

grae22 wrote: Fri May 28, 2021 11:24 amI'm trying to find out if our scenario would qualify as one of these special cases - it does seem unlikely, though.
I think you are right: it is unlikely that your scenario would qualify.

I am no expert but I know that access to private property have been obtained using a couple of scenarios but it is typically not for the purpose of recreation. Some that I know of is: if you cannot access your own property and there is no servitude to traverse a different property that is "blocking" you and there is a way/road that has been used in the past I know of instances where the courts have granted traversal rights. It is also possible to gain access to visit burial grounds, cultural sites etc. The law also allows the Police and Emergency Services access and other organs of state access under certain conditions.
ant
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Re: Is "historic access" a valid legal argument?

Post by ant »

Hi,

The historic rights of access thing is typically reserved for livelihood activities - ie historic rights of access to a beach to fish (for sustenance)

As per the others - no, in SA there is no legal recourse to enjoy a private property for climbing.

I did write a thesis on the topic :-) DM me if you want a copy - there is a chapter explaining the legal framework, but more importantly, a study of what motivates landowners to share access, and what types of arrangements have worked in the past.

Ant
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