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[2013] ZASCA 188
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Pezula Private Estate (Pty) Ltd v Metelerkamp and Another (149/2013) [2013] ZASCA 188; [2014] 1 All SA 664 (SCA); 2014 (5) SA 37 (SCA) (29 November 2013)
T
H
E
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no: 149/2013 Reportable
In
the matter between:
PEZULA
PRIVATE ESTATE (PTY)
LTD
........................................
Appellant
and
NEIL
METELERKAMP
........................................................
First
Respondent
THE
REGISTRAR OF DEEDS
.......................................
Second
Respondent
Neutral
citation:
Pezula
Private Estate (Pty) Ltd v Metelerkamp (149/2013)
[2013]
ZASCA 188
(29 November 2013)
Coram:
Brand, Tshiqi, Theron, Petse JJA and Zondi AJA
Heard:
19 November 2013
Delivered:
29 November 2013
Summary: Prescription - acquisitive
prescription - nec precario - failure to prove non precarious user or
adverse user - failure
to prove benefit in a praedial servitude.
ORDER
On appeal from:
Western
Cape High Court, Cape Town (Saldanha J sitting as court of first
instance):
1
The
appeal is upheld with costs.
2
The
order of the high court is set aside and replaced with the following:
‘The application is dismissed with costs.’
JUDGMENT
THERON
JA (BRAND, TSHIQI, PETSE JJA and ZONDI AJA concurring):
[1]
This
is an appeal, with the leave of the court a quo, against an order
declaring that the first respondent, Mr Neil Metelerkamp,
acquired a
servitude of unhindered pedestrian access along a defined route over
property owned by the appellant, Pezula Private
Estate (Pty) Ltd
(Pezula), in favour of his, Metelerkamp’s, property.
[2]
Pezula
is the registered owner of the remainder of the Farm Noetzie No 394
(the Pezula property) and Mr Metelerkamp is the registered
owner of
erf 28 of Portion 384 Noetzie and he has been the registered owner of
that property since 2 September 1970. Pezula’s
predecessor in
title in respect of the property was Geo Parkes & Sons (Pty) Ltd
(Geo Parkes). Pezula purchased the property
from Geo Parkes in 2000.
[3]
Mr
Metelerkamp inherited erf 28 from his grandfather and built a house
on the property during 1973. Mr Metelerkamp’s grandfather,
Mr
John Rex Metelerkamp, used to be the chairman of the Board of
Directors of Geo Parkes. Mr Metelerkamp was employed by Geo Parkes
as
an accountant for a substantial period.
[4]
From
about 1920 there had been a car park on the Pezula property,
bordering on a Divisional Road, which later became the demarcated
area. It was common cause that there was, from 1981 until 2007, a
lease agreement between the Divisional Council of Outeniqua,
(the
Divisional Council) in terms of which the demarcated parking area
could be used by the public for parking purposes.
[5]
Mr
Alan Stephan Accra Henderson (Mr Henderson), Mr Metelerkamp’s
godfather, was the previous owner of the land described as
Portion 91
of the Farm Noetzie No 394 now known as portion 394/91. This portion
was sold to Pezula by Mr Henderson on 26 September
2004. During 1940,
after Mr Henderson had purchased Portion 394/91, he entered into an
agreement with Mr John Metelerkamp, in the
latter’s capacity as
a director of Geo Parkes, in terms of which Mr Henderson was given
permission to build a road on the
property to gain vehicular access
to his property, for which Mr Henderson paid Geo Parkes a token
amount. Mr Henderson then built
a road, which became known as the
strip road, that led from the demarcated parking area to his property
and to the beach.
[6]
Mr
Metelerkamp attached to his founding affidavit a copy of the Noetzie
General Plan of 1915. While the general plan shows two access
roads
to the beach from the Divisional Road, it was common cause that only
one road exists, namely the top road leading to the
mouth of the
river. In times gone by, the local people used to travel along that
road with their ox wagons (the road is still known
as the Wagon Road)
in order to cross the mouth of the river. The other road indicated on
the general plan was never built. The
public used to make use of a
zig zag footpath from the Divisional Road, down to where the steps
are now, in order to gain access
to the beach. After the strip road
was built the public stopped making use of the zig zag footpath and
started using the strip
road built by Mr Henderson.
[7]
In
1980, Mr Metelerkamp and Geo Parkes entered into a lease agreement in
terms of which Mr Metelerkamp rented from Geo Parkes a
small portion
of the property, on which a single garage was situated. At the time
that Mr Metelerkamp entered into the lease agreement
with Geo Parkes
for the hiring of the garage, the strip road was already in
existence. After conclusion of the lease agreement
in respect of the
garage, Mr Metelerkamp would park his motor vehicle in the garage and
walk from there to his property, along
the strip road.
[8]
Pezula
closed the strip road during May 2006 by putting a shade cloth
barrier across the steps thereby prohibiting entrance from
the
parking area onto the strip road as well as by posting a security
guard to prevent people from using the strip road. During
2007, Mr
Metelerkamp instituted motion proceedings against Pezula and the
second respondent, the Registrar of Deeds, in the Western
Cape High
Court for an order, inter alia, declaring that he had acquired a
servitude right of way over Pezula’s property.
The Registrar of
Deeds was cited in the proceedings as a mere formality. The matter
was referred for the hearing of oral evidence,
after which the high
court (Saldanha J) granted the relief sought which is the subject
matter of the present appeal.
[9]
Section
6
of the
Prescription Act 68 of 1969
provides that:
‘
...
a
person shall acquire a servitude by prescription if he has openly and
as though he were entitled to do so, exercised the rights
and powers
which a person who has a right to such servitude is entitled to
exercise, for an uninterrupted period of thirty years
or, in the case
of a praedial servitude, for a period which, together with any
periods for which such rights and powers were so
exercised by his
predecessors in title, constitutes an uninterrupted period of thirty
years.’
[10]
In
terms of the Prescription Act 18 of 1943, the use of the property
must have been nec vi nec clam nec precario for the period
of thirty
years. Nec precario, the absence of a grant on request, has been
subsumed into sections 1 and 6 of the current Prescription
Act by the
requirement that the potential acquirer of the servitude must act as
though he or she was entitled to exercise the servitudal
right. It
follows that either express or tacit consent would mean that the
alleged acquirer did not act as if he or she was entitled
to exercise
the servitudal right.
[1]
The notion of a precarium is based upon the application by one party
for a concession which is granted by the other party; that
other
party reserving at all times the right to revoke that concession as
against the grantee in terms of the particular conditions
to which
the grant is subject
[2]
.
Put differently, a precarium is a legal relationship which exists
between parties when one party has the use of the property belonging
to the other on sufferance, by leave and licence of the other.
Precarium has its origin in the fact of the permission usually being
obtained by a prayer.
[3]
[11]
Mr
Metelerkamp’s case was that he had acquired a servitude right
of way of unhindered pedestrian access over Pezula’s
property
in favour of his property because he had openly used the strip road
on Pezula’s property as though he was entitled
to do so and
exercised the rights and powers which a person who had a right to a
servitude was entitled to. He alleged that he
had been using the
strip road since 1973 and that as a property owner, his use had
continued uninterrupted for a period of more
than 30 years. Mr
Metelerkamp in his founding affidavit said the following:
‘
The general public as well as
owners of properties that are situated on the beach have been
exercising a right of way over the Respondent’s
property since
I can remember. ... The public as well as the owners of properties
along the beach front made use of this road independently
from Mr
Henderson and/or any agreement Mr Henderson may have had with the
owners of farm 394 namely Geo Parkes.. ’
[12]
The
evidence led at the trial, was contrary to the allegations made by Mr
Metelerkamp in para 11 above, to the effect that the public
made use
of the strip road ‘independently from Mr Henderson’. The
evidence established that Mr Henderson in fact permitted,
and even
encouraged, the use of the strip road by members of the public
including Mr Metelerkamp. Such use of the strip road, including
pedestrian access, occurred with the permission, even possibly
tacitly, acquired from Mr Henderson. This appears from the following
passage of the evidence of Mr George Lovell Parks, a former director
of Geo Parkes, who was called as a witness by Mr Metelerkamp:
‘
And as far as the company [was]
concerned in respect of the house owners down at the beach with
regards to their access down the
strip road? — The strip road
was Mr Henderson’s, it went to his house and we didn’t
have anything to do with
the rest of the residents, no.’
[13]
Mr
Metelerkamp’s evidence was also to the effect that Mr Henderson
exercised control over the strip road. Relevant portions
of his
evidence read:
‘
It is clear that Geo Parks
allowed Mr Henderson to build and use that road which is inter alia
supported by the lease that he obtained
from Geo Parks to use the
road. — Yes, and I don’t think there is any argument
about that.
And as far as that is concerned
obviously Mr Henderson would be able to allow people to use his road,
not so? — Yes.
He could give permission if he wanted
to? — Well I don’t think he ever gave permission for
pedestrians to use the road.
He gave permission for vehicle use.
But
you don’t know as you stand there? — Yes, I do know.
Well have you spoken to Mr ...
(intervenes) — Because Mr Henderson was at Noetzie, he spent
quite a bit of time there and
yes, certainly I am aware that he gave
people use, permission to use vehicular access, but nobody asked him
for pedestrian access.
... [Y]ou never had a discussion with
Mr Henderson as to what he allowed and would not allow, not so? —
No, I didn’t
have a personal discussion with him, no.
I take it that having a [broad] view
of what happened there would you agree that it would have been
unlikely that Mr Henderson would
permit people to use vehicles to go
down there and for some reason refuse pedestrian access? —
Rephrase that, please?
[W]ould you agree that [it] is
unlikely that Mr Henderson would allow people to drive down with
their cars, but refuse and/or close
the road for pedestrians. He
would not have done that? — No, he didn’t do that.
Correct, it follows from that, that he
permitted people to use that road by foot, not so? — I would
say stronger than permitted.
In other words you say stronger than
permitted . . . (intervenes) — I say encouraged.’
[14]
The
evidence shows conclusively that at all relevant times, at the latest
1940, Mr Henderson, as lessee, was entitled to build the
strip road,
use it, and control and permit access thereto. Geo Parkes therefore
had no right to interfere with the use of the strip
road by persons,
including Mr Metelerkamp, who were permitted to do so by Mr
Henderson, who died in 2008. The finding by the court
a quo that Geo
Parkes retained control over the strip road is clearly wrong. There
was no factual basis for finding that Geo Parkes
could have been
legally entitled to interfere with the use of the strip road by
persons, including Mr Metelerkamp, who had permission
from Mr
Henderson to do so. Unless there was an indication in the lease that
Mr Henderson did not have control over the strip road,
we have to
accept that the latter, as lessee, had control over and the right to
use the leased property (the strip road), within
reason. Geo Parkes
would have had no right to interfere with Mr Henderson’s use of
the leased property, the strip road, or
anyone else’s use of
the property if such latter use
was
with the permission of Henderson, unless the use was in breach of a
provision
of the lease agreement or was such as to prejudice Geo Parkes’
residuary rights as owner.
[4]
[15]
The
use of the strip road by Mr Metelerkamp, in the circumstances of this
matter, could not have been nec precario. In other words,
the use was
not adverse. The legal position in this regard was set out by Colman
J in Morkels Transport (Pty) Ltd v Melrose Foods
(Pty) Ltd where the
learned judge explained:
‘
Without myself attempting a
full definition (which is not necessary for the purposes of this
case), I go so far as to say that no
use, occupation or possession is
adverse, for the purposes of the law of acquisitive prescription,
unless the owner has a legal
right to prevent it. The proposition, so
stated, covers part (although not the whole) of the ambit of the
maxim contra non valentem
agere nulla curritpraescriptio.’
[5]
We
know from the evidence that Mr Henderson could give permission in
respect of vehicular access to use the strip road. Mr Metelerkamp’s
grandfather, was given permission by Mr Henderson to drive on the
strip road. It must therefore be accepted that he would also
have had
control over pedestrian use of the strip road. It would be absurd to
suggest that he could allow people to drive on the
road but that he
could not give people permission to walk on the road. For these
reasons, prescription could therefore not run
in respect of the use
of the strip road by Mr Metelerkamp, against Geo Parkes or Pezula.
[16]
There
is another reason why Mr Metelerkamp must fail in his claim for a
praedial servitude over the strip road. It was common cause,
at the
hearing of this appeal, that the Divisional Road and the strip road
were separated by the demarcated parking area. The demarcated
area
had been leased by Geo Parkes to the Divisional Council for the
period 1981 until 2007. In the trial court there was a dispute
as to
whether the strip road and the Divisional Road ever connected. At the
hearing of the appeal, counsel for Mr Metelerkamp,
conceded that the
two roads did not connect. In the circumstances, the strip road does
not provide access to the Divisional Road.
It is clear from the
evidence that Mr Metelerkamp had a right of access, as a member of
the public, to the demarcated area, pursuant
to the lease agreement
between Geo Parkes and the Divisional Council, from 1981 until 2007.
Geo Parkes did not have the right to
interfere with the access of any
person, including Mr Metelerkamp, to the demarcated area. A servitude
right of way ending at the
gate to the demarcated area, cannot
benefit Mr Metelerkamp’s property without a concomitant right
of way over the demarcated
area to the Divisional Road. Without that
connection to the Divisional Road, there is no benefit, which is the
essence of a praedial
servitude.
[6]
[17]
For
these reasons the following order is made:
1
The
appeal is upheld with costs.
2
The
order of the high court is set aside and replaced with the following:
‘
The
application is dismissed with costs.’
L
V THERON
JUDGE
OF APPEAL
APPEARANCES
For
Appellant: JW Olivier SC
Instructed
by:
De
Beer Joubert Attorneys, Cape Town
Phatsoane
Henney, Bloemfontein
For
First Respondent: A De Vos SC with AF Schmidt
Instructed
by:
Logan
-Martin Inc, Knysna
Webbers
Attorneys, Bloemfontein
[1]
Morkels
Transport (Pty) Ltd v Melrose Foods (Pty) Ltd & another
1972 (2)
SA 464
(W) at 478A-482A. See also MD Southwood SC The Compulsory
Acquisition of Rights by Expropriation, Ways of Necessity,
Prescription,
Labour Tenancy and Restitution (2000) at 125.
[2]
John
Saner Prescription in South African Law (1996) at 2-10.
[3]
Malan
v Nabygelegen Estates
1946 AD 562
at 573; Adamson v Boshoff &
others
1975 (3) SA 221
(C) at 226H-227G.
[4]
Morkels
Transport (Pty) Ltd v Melrose Foods (Pty) Ltd at 480E-F.
[5]
Morkels
Transport (Pty) Ltd v Melrose Foods (Pty) Ltd at 479A-B.
[6]
Bisschop
v Stafford
1974 (3) SA 1
(A) at 11E-H.