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[2010] ZAGPPHC 95
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De Friedland Eiendomme (Pty) Ltd v Pretorius and Another (20744/2008) [2010] ZAGPPHC 95 (5 August 2010)
IN THE HIGH COURT OF
SOUTH AFRICA /ES
(NORTH GAUTENG HIGH
COURT. PRETORIA)
CASE NO:
20744/2008
DATE:
05/08/2010
IN THE MATTER
BETWEEN
DE FRIEDLAND
EIENDOMME (PTY) LTD APPLICANT
AND
STEPHANUS JOHANNES
MARTHINUS PRETORIUS 1ST RESPONDENT
JANETTE ANNA
PRETORIUS 2nd RESPONDENT
JUDGMENT
BAM. AJ
[1] The applicant, a
private company, is since 1991 the owner of immovable property known
as the remaining extent of Portion 1046,
Capital Park, Registration
Division JR. Gauteng, 3.0653 hectares (hereinafter referred to as
property "A").
[2]
The respondents, husband and wife, are since 2005 the owners of the
erf immediately adjacent to property "A" on the
eastern
side, known as Portion 12 of the remainder of Portion 1046, 1062m
2
(hereinafter referred to as property "B").
[3]
To the northern side of the properties is Friedlandburg Street, from
which street a person was able to get access to, initially
property
"A", and currently only to property "B" and other
erven east of "B". The entrance to "A"
(now
obstructed) on the western side of "B", forms a panhandle,
almost the size of "B" leading to the remainder
of "A".
This entrance to "A" is obstructed by paving, grass and
plants covering an area of 232m
2
,
which area is also now fenced in. The said area will hereinafter be
referred to as portion "C".
[4]
The said obstruction on "A" is the
fans
et origo
of
the problem between the parties. Applicant applies for the removal of
the construction obstructing the entrance to its property.
Respondents refuse to remove the construction from portion "C"
on the basis that they had acquired the property portion
"C"
in 2005 in terms of the provisions of
section 1(c)
of the
Prescription Act of 1969
, Act 68 of 1969. The respondents allege that
they and their predecessors possessed and owned portion "G"
for more than
thirty years,
nec
vi, nec clam, nec precario.
This
is denied by the applicant. It is common cause that the respondents
accordingly bear the
onus
to
prove what has been alleged.
[5]
It is alleged by the applicant that the factual situation about the
obstruction became known to the applicant in 2007, after
which legal
steps were initiated to remedy the problem. It was to no avail.
[6]
Applicant does not say in its papers whether there was any
obstruction on "C" on the date of the purchase in 1991.
Respondents' averment that "C" had been used since 1972 by
one of their predecessors was accordingly not gainsaid by
the
applicant.
[7]
It is, however, of cardinal importance to determine to what purpose
"C" was used and what the respondents' predecessor's
intention was in that regard. The respondents state as follows in
their opposing affidavit:
"5.
Mnr Schoeman het gedurende of ongeveer 1972 die permanente struktuur,
wat hoofsaaklik bestaan uit 'n oprit konstruksie
wat geplavei is
(this is property "C"), opgerig ten einde toegang tot sy
motorhuis wat aan die agterkant (met ander woorde
weg van die straat)
van sy erf (property "B") gelee is. Die oprit konstruksie
het dit vir mnr Schoeman moontlik gemaak
om gemaklik by sy motorhuis
uit te kom.
6.
Hy het die traliewerk rondom die struktuur opgerig in die vroee jare
1980, hoofsaaklik vir sekuriteitsdoeleindes.
7.
Mnr Schoeman het gevolglik die gedeelte van die eiendom van die
applikant, waaroor hierdie aansoek handel, (property "C")
van ten
minste
1972 gebruik asof dit sy eie eiendom is, tot uitsluiting van die
regte van enige ander persoon, insluitende die eienaar van
die
grondstuk wat nou aan die applikant behoort. 8. Sedert die traliewerk
opgerig is, was dit net soveel meer opsigtelik duidelik
dat mnr
Schoeman die eiendom gebruik asof hy die eienaar is van die geheel
van die ingespande grond."
[8]
In order to substantiate the claim that "C" now belongs to
them as the true owners, respondents were obliged to prove
that their
predecessors, and themselves, had the
possessio
civilis,
the intention to possess "A" and not merely the intention
(dominus
habiendi)
to
use the property "C", for some or other reason, which would
have established a lesser right than the right of possession
with the
intention to hold or keep the property for oneself. See in this
regard
Wicks
& Others v Place, NO
1967
1 SA 561
(ECD) at 567B-G per EKSTEEN, J:
"The
possession required to found a claim of acquisitive prescription,
however, is not mere natural possession but the full
juristic
possession —
civilis
possessio (Welgemoed v Coetzer,
1946
TPD 701).
This
civilis
possessio
has
been equated to the requirements of adverse user. (Cf.
Albert
Falls Power Co (Pty) Ltd, supra
and
Campbell
v Pietermarilzburg City Council,
1966
(2) SA 674
(N) at p. 680). In
Welgemoeds
case,
MURRAY, J., refers to
civilis
possessio
as
possession 'accompanied by the intention to hold as owner' and as
'the
holding or detaining of the corporeal thing with the intention of
keeping it for oneself (p. 712). In that case the claim was
also for
a certain piece of land the ownership of which the plaintiff claimed
to have acquired by prescription. It is clear however
that it is not
only a corporeal thing which can be acquired by prescription but also
incorporeal rights, such as servitudes. A
usufruct of property may
also be acquired by prescription
{Grotius,
2.39.11.;
Voet
7.1.7.)
and this, to my mind, can only be said to have occurred where the
claimant has exercised the rights of a usufructuary over
property
continuously
nec
vi, nec clam, nec precario
and
adversely to the rights of the person entitled to the enjoyment of
the property - be he the owner or the holder of some other
right less
than ownership over the property - for the full period of
prescription. The
animus
domini
that
is required for the
possessio
civilis
need
not therefore necessarily be the intention to hold a corporeal thing
as owner, but it can also be an intention to hold an incorporeal
right as holder of that right. If, therefore, a claimant were to hold
property with the intention of holding same merely as a usufructuary,
and he were to do so continuously for 30 years
necvi,
nec clam, nec precario
and
without manifesting recognition of any other person's rights to enjoy
the fruits of that property, he would acquire a usufruct
over that
property by prescription, but he will not have acquired ownership
unless he intended to hold as owner."
Ownership
has been defined as follows:
"Ownership
is potentially the most extensive private right which a person can
have with regard to a corporeal thing. Of all
the real rights
ownership potentially confers the most complete or comprehensive
control over a thing. This becomes apparent when
one contrasts
ownership with limited real rights such a mortgage, pledge, servitude
and lease which confer only certain clearly
defined pow
:
ers
on the holder of the real right. It is impossible to draw up a
complete catalogue of all the powers conferred by ownership.
In
principle, ownership entitles the owner to deal with his thing as he
pleases within the limits allowed by law." See
LAWSA
Vol
27.....
1
st
edition par 104.
Van
der Merwe
Sakereg
p.460
para (vi) states that servitudes are not a
numerus
clausus.
[10]
I
am
in respectful agreement with the learned EKSTEEN,
J
(as
he then was) in
Wicks,
supra.
Accordingly
the respondents' version as contained in their opposing affidavit has
to be scrutinised in order to determine what respondents'
and their
predecessors' intention with the possession of "C" was.
[11]
When the respondents' reasons for the use and possession of property
"C" are considered, several other reasons comes
to mind for
the initial use of property "C" by the then owner of
property "B":
it
could have been used as a temporary dumping site for garden refuse,
etc;
this
is a common sight in the city of Pretoria;
it
could have been possessed for "cosmetic" reasons to improve
the view of property "B" from Friedlandburg Street;
•
it could have been more convenient for the owner of premises
"B" to have access to his garage;
on
one of the photographs is depicted that portion "C" is
demarked for parking. It is not explained on the papers what
the
reason is for the parking and for whom parking is provided for.
[12]
I agree with Mr Van Twisk. appearing for the applicant, that the
words used by the respondents to substantiate their allegation
of the
acquisition of portion "C" through prescription, are vague
and do not refer to the specific intention of the respondents
and
their predecessors to have had
possessio
civilis,
the
intention to possess property "C" to keep it.
[13]
The respondents were nonspecific pertaining to their endeavour to
substantiate their allegation. In this regard, to my mind,
there is
no reference to the intention of the respondents and their
predecessors to have had the intention to possess portion "C"
with the intention to keep it. Mr Schoeman, the erstwhile possessor
of portion "C", could have had in mind some other
reason to
use portion "C". See in this regard
Wicks,
supra,
and
Welgemoed
v Coetzer & Others
1946
TPD
701.
[14]
I
have
already alluded to the contents of the respondents' opposing
affidavit. In this regard
I
want
to record that I could find no evidence indicating what Mr Schoeman's
intention was during
1972,
and
what exactly the "encroachment" consisted of, how it
developed and to what purpose.
[15]
I
cannot
on the facts before me find what exactly Mr Schoeman's intention was
and what exactly he did in manifesting it. It would
amount to
speculation and conjecture. The mere fact that the encroachment on
portion "C" developed into a partly paved
area, a parking
place and some horticulture improvements, does not constitute
sufficient evidence that the respondents have, on
the probabilities,
proved their case.
[16]
It
was conceded by Mr Kriiger that the owner of the property with the
possessio
civilis
has
an automatic right of way (via) to gain access to or leave his
property.
[17]
The
applicant's and/or its predecessors' negligence, in not looking after
the property properly, to avoid abuse thereof, in view
of my finding
above, seems to be irrelevant. See
Pienaar
v Rahie
1983
3
SA
126
(AA)
at
136.
[18]
On the facts before me it appears that since 1972 the "encroachment"
escalated through the years. This situation
covers the thirty years
space of time provided for in the Act, There is however no indication
whether the intention of the first
predecessor of the respondents did
not change or was not amended after lapse of time. Respondents' case
lacks proof of what the
respondents' predecessor's intention with
property "C", at all relevant times, was.
[19]
The application of the applicant succeeds. The applicant is, and
was, at all relevant times the owner of property "A",
which
right includes the applicant's right to gain access to or leave the
property as it wishes. Applicant never lost possession
of portion
"C". I therefore make the following order:
1.
The respondents are ordered to remove all permanent and/or semi
permanent structures erected on or encroaching on the property
of the
applicant known as the remaining extent of Portion 1466, Capital
Park. Registration Division JR, Gauteng ("the property")
within thirty days from date of this order.
2.
2.1 That the applicant be authorised, in the event of
non-compliance by
the
respondents with 1 above, to engage the services of a civil
contractor to remove any permanent and/or semi permanent structures
erected on or encroaching on the property.
2.2
That the respondents are ordered to pay the costs occasioned
thereby.
3.
That
the applicant is granted free and unrestricted access to the property
from date of this order.
4.
That
the respondents pay the costs of this application.
A
J BAM
ACTING
JUDGE OF THE NORTH GAUTENG HIGH COURT
20744-2008
HEARD
ON:
FOR
THE APPLICANT: ADV M VAN TWISK
INSTRUCTED
BY:
FOR
THE RESPONDENTS: ADV T P KRUGER I
NSTRUCTED
BY: