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[2011] ZAGPPHC 172
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Van Der Merwe v Conroy (A950/08, 50436/2007) [2011] ZAGPPHC 172 (16 September 2011)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT.
PRETORIA
/ES
CASE
NO:A950/08/,
50436/2007
DATE:16/09/2011
IN
THE MATTER BETWEEN:
JOHANNA
MARIA VAN DER
MERWE
..................................................................
APPELLANT
AND
HENDRIK
JOHANNES
CONROY
.........................................................................
RESPONDENT
JUDGMENT
ZONDO.
J
Introduction
[1]
This is an appeal against a judgment and order issued by MAVUNDLA. J
in this Division in an application that was brought by
the present
respondent against the present appellant for certain relief
concerning a servitude. The appellant was the respondent
in the court
below and the respondent was the applicant in that court. The orders
that were sought by the present respondent in
the court below were in
effect in the following terms:
(a)
that the present appellant be interdicted or restrained from using
Portion ABXY as shown in annexures "Al", "A2"
and
"A3" to the notice of motion.
(b)
that the present appellant be ordered to remove any fencing around
Portion ABXY.
(c)
that the present appellant be ordered to restore the present
respondent's use of Portion ABXY.
(d)
that the present appellant be ordered to pay the costs of the
application.
[2]
The appellant delivered and served a notice of opposition of the
application but did not deliver and serve any answering or
opposing
affidavits in support of the opposition. At the hearing of the
application, the appellant was represented by counsel who
opposed the
application on the respondent's own papers. After the hearing of
argument judgment was reserved. Later the court a
quo handed down its
judgment. In terms of that judgment the application succeeded in
effect though not all the orders that had
been sought by the
respondent were granted. The order that was granted by the court
below was in the following terms:
"1.
That the [appellant] is ordered to remove any fencing in the
servitude road, in Portion ABXY;
2.
That the [appellant] is ordered to restore the servitude road around
Portion ABXY;
3.
That the respondent is ordered to pay the costs of this application."
[3]
It can be seen from a reading of the orders sought in the notice of
motion and the orders that were granted by the court below
that the
court below did not grant the first order that was sought in the
notice of motion. That is the order interdicting the
appellant from
using Portion ABXY. The appellant subsequently applied for, and was
granted, leave to appeal to a Full Bench of
this Division against the
judgment and order of the court below.
Background
[4]
It is convenient at this stage to refer to the appellant as Ms Van
der Merwe or Van der Merwe and to the respondent as Mr Conroy
or
Conroy. Conroy's case in the court below was set out in a short
founding affidavit. Conroy said the following in his affidavit:
(a)
He is an adult businessman and lives at Plot 100, Koningklip,
Kromdraai. Krugersdorp; he said he was annexing to the affidavit
a
copy of the title deed held under T2006/88 from which he said it
appears that he was the owner of this property.
(b)
The respondent was Johanna Maria Van der Merwe, an adult woman then
resident at Honingklip Farm.
(c)
She is the owner of Portion 100, a portion of Portion 6 called Gelden
van de Plaas Honingklip 378, Registration Division IQ,
Transvaal.
(d)
further, as appears more fully from annexure "A",
(i)
the surface of Plot 100 consists of 21,4133 hectares
(ii)
the property was originally transferred under the title deed T546 36
81 with the diagram SG number A3059/69 subject to the
following
condition:
the
property was subject to a servitude of a right of way of 15,74 metres
in width in favour of the general public as indicated
through ABEF on
diagram SG number A3059/69 as annexed to title deed number T54636/81.
[5]
In paragraph 10 of the founding affidavit Conroy said he was
attaching annexure "B" to his affidavit which he said
was a
copy of a notarial deed of servitude number K953/80. In paragraph 11
of the affidavit Conroy said that he was also annexing
to his
affidavit annexure "C" a copy of the title deed number
T54636/81. In par 12 Conroy says that as appears more fully
from
annexure "B" Van der Merwe granted in favour of the general
public a right of way of 15,74 metres width as reflected,
according
to Conroy, in ABCDE and GHJKLM in diagram SG number A3 05 7/69.
[6]
In par 13 of the founding affidavit Conroy said that Van der Merwe is
the owner of the Honingklip Farm, Portion 105 of Farm
178 IQ. He said
that the property was originally the property of Gelden Plaas
Beleggings (Pty) Limited. He said that the property
was transferred
to Van der Merwe by the South African Development Foundation.
[7]
On 22 August 2006 Conroy's previous attorneys wrote a letter to Van
der Merwe's husband who is an attorney. A copy of the letter
was
annexed to the founding affidavit as annexure "D". That
letter was addressed to Mr Herman Van der Merwe. It appears
from the
letter that there had been previous discussions between Conroy and Mr
Herman Van der Merwe about problems relating to
the servitude.
[8]
In the letter Conroy's attorneys inter alia said that Conroy had
informed them that the servitude road - which they said had
been
registered on Mr Herman Van der Merwe's property in favour of the
public in accordance with the notarial deed of servitude
no
K953/1980's was supposed to be 15,74 metres wide but at a certain
point or area the road was 8 to 10 metres wide because Mr
Herman Van
der Merwe had extended the fence to the servitude road. Conroy's
attorneys pointed out that Conroy wanted the servitude
road to be
kept at 15,74 metres wide seeing that some motorists encroached upon
his property (Portion 101, a portion of Portion
6 Honingklip) because
of the fact that the narrowing of the servitude area from Mr Herman
Van der Merwe's side. It seems from the
letter that Conroy also
wanted to lay some water pipes on his property and the narrowing of
the servitude road made this difficult.
Conroy's attorneys asked Mr
Herman Van der Merwe for his comment whereafter they would advise
Conroy as to what to do.
[9]
Mr Herman Van der Merwe responded to the letter (annexure "D")
by way of a letter dated 5 September 2006 a copy of
which was annexed
to Conroy's affidavit as annexure "E". In that letter Mr
Herman Van der Merwe replied by saying that
the matter had previously
been discussed with Conroy and the fence was exactly where it had
been agreed with Conroy it should be.
In paragraph 18 of his
affidavit Conroy disputed the statement by Mr Herman Van der Merwe in
his letter that the fence ran precisely
where it had been agreed with
Conroy it should run. Conroy says in paragraph 18 of his affidavit
that Van der Merwe (i.e. the respondent
in the court a quo and
appellant in this court as opposed to Mr Herman
Van
der Merwe) trespasses onto Portion ABXY as appears from annexure "A"
to Conroy's affidavit. In paragraph 19 of his
affidavit Conroy said
that at the time, Van der Merwe was allowing the intrusion into the
servitude road and this had made it necessary
for him to bring the
application to court. In paragraph 20 he asked for an order in terms
of the notice of motion.
The
admission of new documents
[10]
At the hearing of the application in the court below counsel for Van
der Merwe took the point in effect that Conroy had failed
to show
that Van der Merwe was the owner of the farm adjacent to his and that
her farm was subject to a servitude right of way.
Counsel for Van der
Merwe submitted that in order to succeed in his application Conroy
had to show that Van der Merwe was the owner
of the farm adjacent to
his farm and that Van der Merwe's farm was subject to a servitude
such as was alleged by Conroy in his
affidavit. Counsel for Van der
Merwe submitted that Conroy had failed to satisfy these requirements
in his affidavit and, for this
reason, Conroy's application should be
dismissed.
[11]
It would appear that counsel for Conroy then begged for leave to hand
up certain documents to rectify the omission relied upon
by counsel
for Van der Merwe in support of his submission that the application
be dismissed. The documents that counsel for Conroy
handed up to the
court a quo were:
(a)
a document bearing the heading: Conveyancer's certificate, purporting
to be signed by one J.I. Herman; in that document Jacoba
Isabella
Herman represented herself as a conveyancer and certified that, in
terms of a certain Deed of Transfer a copy of which
she said was
enclosed thereto marked as annexure "J1H1". Johanna Maria
Van der Merwe, with a certain identity number,
was the owner of
certain properties that she listed under paragraph 1 of that
document; in paragraph 2.3 and 4 of that document
Ms Herman made
other statements.
(b)
a document purporting to be a deed of transfer of certain properties
from the South Africa Rural Development Foundation to one
Johanna
Maria Van der Merwe.
(c)
a document with some writing on it most of which is illegible.
(d)
two pages which appear to be part of the document referred to in (c)
above.
(e)
a map purporting to depict certain properties.
[12]
No affidavit was tendered by counsel for Conroy by which he sought to
introduce the new documents. These documents were admitted
and their
contents were admitted as evidence without anyone having deposed to
an affidavit to explain what they w:ere and to confirm
their contents
as true and correct nor did anybody explain under oath where they had
been obtained from.
[13]
After admitting the new documents the court a quo proceeded to
consider the merits of the application without postponing the
matter
to afford Van der Merwe the opportunity to consider whether, in the
light of the admission of the new documents by the court,
she should
deliver and serve an answering affidavit dealing with the new
documents.
[14]
In its judgment the court below dealt with the admission of the new;
documents on the basis of the provisions of section 19
and 20 of the
Civil Proceedings Evidence Act. 1965 (Act no 25 of 1965). Sec 19(1)
reads as follows: "19. Production of official
documents -
(1)
No original document in the custody or under the control of any state
official by virtue of his office shall be produced in
evidence in any
civil proceedings except upon the order of the head of the department
in whose custody or under whose control such
document is or of any
officer in the service of the state authorised by such official.
(2)
Any such document may be produced in evidence by any person
authorised by the person ordering the production thereof."
The
provision of sections 20(1) and (2) read as follows:
"20.
Certified copies of or extracts from official documents sufficient. -
(1)
Except when the original is ordered to be produced any copy or
extract from any document in the custody or under the control
of any
state official by virtue of his office, certified as a true copy or
extract by the head of the department in whose custody
or under whose
control such document is or by any officer in the service of the
state authorised by such head, shall be admissible
in evidence and be
of the same force and effect as the original document.
(2)
Any such copy or extract may be handed in by any party who desires to
avail himself thereof."
Section
20(3) is not of any significance in the present matter.
Judgment
of the court below
[15]
In paragraph 14 of its judgment the court below said in part:
"The
relevant conveyancer's certificate relates to the title deed of the
[appellant], which is a certified copy of a public
document. Since
this is an official document as per section 19 of Act 25 of 1965 and
it shows that the respective properties mentioned
therein belong to
the [appellant] and have been identified by a conveyancer. I am
satisfied that this certified title deed should
be accepted as
evidence over the bar in terms of the provisions of section 20(1) of
the Civil Proceedings Evidence Act no 25 of
1965."
In
the same paragraph of its judgment the court below additionally
sought to justify its admission of the new documents on the bases
that:
(a)
it was satisfied that the admission of the new documents was not
"akin" to allowing an applicant to make its case
in reply
because no answering affidavit had been delivered.
(b)
the appellant would not be prejudiced by the admission of the new
documents because they related to her own title deed and ownership
of
properties.
(c)
the appellant had not filed an opposing affidavit.
The
appeal
[16]
It seems to me upon a reading of the judgment of the court below that
the admission of the new documents was fundamental to
its conclusion
that Conroy had made out a case for the order that the court a quo
granted. There can be no doubt that, without
the admission of the new
documents, the court a quo could not justifiably have concluded that
Conroy had made out a case. Accordingly,
the correctness or otherwise
of the decision of the court a quo depends upon whether or not it was
correct in admitting the new
documents.
[17]
Before us on appeal counsel for Van der Merwe submitted that the
court a quo erred in admitting the new documents. In this
regard it
needs to be pointed out that the court below relied upon the
provisions of sec 19 and sec 20 of the Civil Proceedings
Evidence Act
no 25 of 1965 to justify its admission of the documents. Sec 19 deals
with original documents. It prohibits the production
of original
documents under the control of or in the custody of any state
official by virtue of his or her office except upon the
order of the
head of the department or other official authorised by such head. Sec
19 does not relate to the production of copies.
As the new documents
were copies, section 19 was of no application in this case. Counsel
for Van der Merwe also submitted that
section 20 of the Civil
Proceedings Evidence Act 25 of 1965 lays down certain requirements
before copies of documents referred
to therein may be admitted and he
submitted that these were not met in this case. For that reason,
continued counsel for Van der
Merwe, the court a quo was not entitled
to admit the new documents.
[18]
Counsel for Van der Merwe is right in his submission about sec 19 and
sec 20. Section 20 envisages that a copy or extract from
any document
in the custody or under the control of any state official by virtue
of his office is admissible in evidence and has
the same force and
effect as the original document thereof but the copy or extract to
which section 20 refers is one that is "certified
as a true copy
or extract by the head of the department in whose custody or under
whose control such document is or by any officer
in the service of
the State authorised by such head." In this matter before the
court a quo there was no evidence that the
copies of or extracts from
the title deed and other documents handed up in court together with
the so-called "conveyancer's
certificate" were certified by
the head of the relevant department or an authorised officer in the
service of the state as
true copies of or extracts from, the relevant
documents.
[19]
Before us counsel for Conroy attempted to invoke the provision of
section 18 of the aforesaid Act in an attempt to defend the
decision
of the court below. Sec 18 of the Act reads as follows:
"18.
Certified copies or extracts from public documents admissible in
evidence. - (1) Whenever any book or other document is
of such a
public nature as to be admissible in evidence on its mere production
from proper custody, any copy thereof or extract
therefrom proved to
be an examined copy or extract or purporting to be signed and
certified as a true copies of or extract by the
officer to whose
custody the original is entrusted, shall be admissible in evidence."
Counsel's
reliance upon this section is misplaced in this case because the
section refers to a copy or extract that is signed and
certified as a
true copy or extract by the officer to whom reference is made towards
the end of the provision and this was not
the case in the present
matter. There was no evidence to the effect that the person by whom
the copies or extracts were certified
was an officer such as is
referred to in section 18. Accordingly, section 18 cannot be of
assistance to the respondent.
[20]
In the light of the above I conclude that the court a quo should not
have admitted the new documents. In the absence of the
new documents
there was no evidence before the court a quo linking the appellant to
the farm to which the present respondent sought
to link her which was
subject to the servitude right of way which was the subject of the
application. In the premises the appeal
must succeed with costs.
[21]
In the premises I make the following order:
1.
The appeal is upheld with costs.
2.
The order of the court a quo is set aside and, for it, the following
order is substituted:
"The
application is dismissed with costs."
Zondo
J
I
agree.
Legodi
J
I
agree.
RAULINGATJ
50436-2007/ES
HEARD
ON: 3 AUGUST 2011
DATE
OF JUDGMENT:16/09/2011
FOR
THE APPELLANT: ADV JH vd B LUBBE
INSTRUCTED
BY: MESSRS HERMAN VAN DER MERWE AND GREYLING c/o NIEMANN & SWART
ATTORNEYS, PRETORIA
FOR
THE RESPONDENT: ADV INGE OSCHMAN
INSTRUCTED
BY: MESSRS VAN ZYL BEYERS & RAUTENBACH c/o M.P. KOEKEMOER
ATTORNEYS, PRETORIA