1
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
In the High Court of South Africa
(Western Cape Division, Cape Town)
Case number: 8917/2019
In the matter between:
BURGLAR ALARM & REMOTE CONTROL
SERVICES CC Plaintiff
and
WERNER BRITS Defendant
_________________________________________________________________
JUDGMENT DELIVERED ON 7 FEBRUARY 2024
(delivered electronically via email)
VAN ZYL AJ:
Introduction
1. This is a dispute over a triangular strip of land along the common boundary of
the respective parties’ properties, visually marked by a wire fence that does not
follow the cadastral boundary . The plaintiff alleges that it has acquired
ownership of the strip of land – which is on its side of the fence - by way of
acquisitive prescription. The defendant disagrees.
2. Acquisitive prescription is an original method of acquisition because the co-
operation or permission of the legal predecessor is not required to acquire
ownership in this manner. A possessor acquires ownership automatically and ex
2
lege the moment it satisfies all the requirements of prescription. Ownership is
not dependant on the property first being registered in the acquirer's name in the
Deeds Office.1
3. Acquisitive prescription is regulated by the Prescription Act 18 of 1943, as well
as the Prescription Act 68 of 1969. Since the parties’ respective erven were
created in 1971, the 1943 Act has no application. The 1969 Act which came into
operation on 1 December 1970 applies. Section 1 provides that " ... a person
shall by prescription become the owner of a thing which he has possessed
openly and as if he were the owner thereof for an uninterrupted period of thirty
years or for a period which, together with any periods for which such thing was
so possessed by his predecessors in title, constitutes an uninterrupted period of
thirty years."
4. The dispute arose around 22 March 2019. Since the relevant period for
acquisitive prescription in terms of section 1 of the 1969 Act is 30 years, the
question for purposes of the declaratory order sought by the plaintiff is whether
the fence had been regarded as the boundary between the parties' propert ies
for 30 years prior to the service of the summons on the defendant on 27 May
2019.
2 In other words, by the time the action was instituted, had the fence had
been regarded as the boundary for long enough to have enabled the plaintiff
and its predecessors -in-title to have acquired ownership of the strip of land
between the fence and the cadastral boundary by way of acquisitive prescription?
5. In his plea the defendant denies that the plaintiff acquired the land in question
by acquisitive prescription. The defendant seeks , by way of a counterclaim, an
order that the plaintiff “remove the encroachment and make good the land upon
which it encroaches”. T he question to be answered in relation to the
counterclaim is whether the fence had been regarded as the boundary for 30
years prior to the delivery of the defendant's counterclaim on 27 June 2019.
This is because the plaintiff is the party in possession of the land (it being on the
1 Cillie v Geldenhuys 2009 (2) SA 325 (SCA) at para [13].
2 None of the factors postponing the running of prescription – referred to in section 3 of the
1969 Act – is present.
3
plaintiff’s side of the fence) , and in terms of section 4(1) of the 1969 Act,
prescription ran until interrupted by service of legal process claiming ownership
of the land on the plaintiff.
6. The relevant evidence furnished by the parties is summarised below. The legal
principles underpinning the determination of the dispute are canvassed
thereafter.3
7. The plaintiff called four witnesses, namely Mr Leon Nabal, Mrs Martha Nabal, Mr
Pieter Houterman, and Mr Otto Steinhofel. The defendant himself testified, and
called tow further witnesses, namely Mr Willen van der Merwe and Mr Ferdinand
Cronje.
The parties’ respective properties
Overview
8. The plaintiff and the defendant own adjoining properties on the Breede River,
just south of Malgas. The properties are known, respectively, as erven 4[...]6
and 4[...]0 Malagas, and are situated on the Malgas/lnfanta road. The bulk of
each of the properties lies to the south of the road, with smaller portions on the
Breede river to the north of the road.
9. The dispute between the parties arises from the fact that there is a difference
between the real or actual boundary between their properties, and a barbed-wire
fence which constitutes (and has, on the evidence, done so for many years) a
visible, physical boundary between them. The real or actual boundary (the
cadastral boundary) between the properties is an invisible straight line between
two beacons which were surveyed in 1971 to mark the corners of the properties.
10. At the back of the two properties the wire fence coincides with the cadastral
boundary. The fence starts at the rear corner beacon between the properties,
3 Counsel for each of the parties provided heads of argument and helpful oral argument, for
which the Court expresses its appreciation.
4
which is marked by a railway sleeper. The fence then runs parallel and very
close to - within a few centimetres of - a dwelling situated near the back of erf
4[...]6, the plaintiff's property.4 As the fence runs, which it does in a straight line,
it deviates from the cadastral boundary at a rate of about 16mm per metre, and
continues to do so for approximately 150m until it terminates at a fence post at
the Malgas/lnfanta road.
11. Where the fence ends at the fence post, at the corner of a low stone entrance
wall marking the entrance to the plaintiff’s property , it is about 2.5m from the
cadastral boundary. From the drawings and photographs submitted into
evidence, it is evident that the stone entrance wall
5 (erected by the plaintiff, as
well as the landscaping done by the plaintiff in front of the wall ) on the western
side of the driveway into the plaintiff’s property is on the defendant’s side of the
cadastral boundary , and the fence post is on the western end of the western
entrance wall. The fence continues on the other side of the road, terminating
near the Breede river.
6
12. The fence thus encroaches for its entirely length onto erf 4[...]0 (the defendant’s
property), cutting a long, triangular strip of land from the erf 4[...]0 . The
encroachment is imperceptible at first, but gradually becomes more pronounced
as it continues onto the river side of the road.
Ownership of the plaintiff’s property over the years
13. The ownership of the parties’ respective properties over the years is not
disputed. The relevant title deeds and land surveyor’s diagrams were
handed in as evidence.
4 The position of the dwelling on erf 4[...]6 makes it impossible for a fence to run exactly on the
cadastral boundary, because a corner of the dwelling protrudes about 7cm into erf 4[...]0 at a
point about 25m down along the boundary.
5 The plaintiff’s property is also known as Diepkloof Farm, which is the name inscribed on one
of the entrance walls.
6 It is not entirely clear from the counterclaim whether the defendant seeks an order also in
relation to the portion of the fence on the river side of the properties, but the case was
approached on the basis that the entire length of the fence (on both sides of the road) was in
issue for purposes of prescription.
5
14. It is common cause that t he plaintiff's property (erf 4[...]6 Malagas) was
formed by the consolidation of two properties, namely erf 4[...]1 and erf 4[...]4
Malagas. Erf 4[...]1 had been surveyed and subdivided from erf 4 […]2 in
1971. Prior to 1971, erf 4[...]1 did not exist as a separate parcel of land.7
15. Regarding erf 4[...]1 : the plaintiff led evidence on the successive ownership
of erf 4[...]1 over the years. Erf 4[...]1 was registered in the name of Mr Jan
Dawid Lourens in 1972 in terms of deed of transfer T 69[…]. In 1977 Mr
Lourens sold and transferred the property to Mr Mervyn Lorraine Olivier.
16. By 1978, erf 4[...]1 had a structure on it near its south -western corner. The
structure comprised various rooms, and one of its outer walls was close to
and parallel with the boundary of what is now the defendant's property, erf
4[...]0. In February 1978 plans were approved to extend the existing
structure on erf 4[...]1 to include further living areas. The extensions were
to both the north and south ends of the existing building. The plan
showed the edge of the house to be parallel to the boundary of the property.
The extensions were subsequently built, although it is unclear exactly when
that work took place. The wall on the north- western section of the extension,
after it was built, protruded over the cadastral boundary and into what is now
erf 4[...]0, by 7cm.8
17. In January 1989 Mr Olivier sold erf 4[...]1 to Mrs Martha Emmerencia Nabal,
and it was transferred into the latter's name on 20 March 1989. The evidence
(tendered by the plaintiff) of Mrs Nabal and her husband, Mr Leon Nabal,
indicates that the extensions to the existing structure on erf 4[...]1 had been
built well before 1989.
18. The plaintiff purchased erf 4[...]1 from Mrs Nabal on 14 October 1992, and
took transfer of it on 9 February 1993. The evidence of the plaintiff's sole
member, Mr Otto Steinhofel, was that the building was old, and that he
7 A report dated 3 December 1969 regarding the proposed subdivision and the difficulty in
finding beacons , prepared land surveyor H. J. Smal, was handed in, but does not take
matters much further for the purposes of the relief sought in this action.
8 See footnote 4 above.
6
renovated the interior.
19. As regards erf 4[...]4, the evidence was as follows: erf 4[...]4 was created as
a portion of erf 4[...]7 in 1997. The plaintiff purchased erf 4[...]4 on 18
October 1999 from Mr Manfred Bleier and took transfer of it on 9 March
2000.
20. Erven 4[...]1 and 4[...]4 were thereafter consolidated to form erf 4[...]6
Malagas – the plaintiff’s property.
21. As indicated earlier, erf 4[...]1 is divided by the Malgas/lnfanta road. On the
small portion closer to the Breede R iver, Mr Steinhofel installed a windmill (a
“windpomp”) shortly after the plaintiff took transfer. He also installed a
telephone line, and an electricity cable along the fence. He testified that all
the telephone and water lines , a s well as the electricity cable, ran to the
house along the western boundary of the property, close to the existing fence
between the parties’ properties . On the relevant photographs these service
cables are to be seen virtually underneath the fence.
22. From about 2003 or 2004 onwards Mr Steinhofel upgraded the property to
render it suitable for use as a guest farm. H e constructed cottages to the left
of the entrance into the property, erected paddock fencing, and planted a n
avenue of olive trees next to and on either side of the driveway leading up to
his homestead.9 He also built stone walls on either side of the entrance to
the driveway – reference has been made earlier to the fact that the entrance
wall on the western side of the driveway into the plaintiff’s property is on the
defendant’s side of the cadastral boundary.
Ownership of the defendant’s property over the years
23. The defendant's property (erf 4[...]0 Malagas) was surveyed and subdivided
from erf 4[…]2 in 1971, at the same time as erven 4[…]9 and 4[...]1.
9 One of the lines of trees therefore falls within the disputed strip of land.
7
24. Erf 4[...]0 was transferred to Mr Jan Dawid Lourens in 1972 in terms of deed
of transfer T65[…]. In 1982 Mr Lourens sold and transferred the property to
Mr Johannes Marthinus Swanepoel in terms of deed of transfer T35[…]. In
1988 it was acquired by Mr Hendrik Johannes Abraham Walters, who sold it
to Mr Gordon Quinton Morgenrood in 1989, it being transferred to the latter
in 1990. Mr Morgenrood's deceased estate sold erf 4[...]0 to Mr Charl Ernest
Hubner and Ms Jenny Dirce Steinbauer in March 2005. It was transferred
into their names in July 2005.
25. The defendant purchased erf 4[...]0 from Mr Hubner and Ms Steinbauer on
10 December 2018, and it was registered in his name on 18 February 2019.
The wire fence between the properties , and the plaintiff’s evidence in
respect thereof
26. As indicated, the disputed boundary is the boundary between erf 4[...]1 (now
part of erf 4[...]6) and erf 4[...]0. Although erf 4[...]1 no longer exists as such,
it is practical in the context of the dispute to refer to it, and not to erf 4[...]6.
27. During a survey conducted on 22 March 2019 by land surveyor Mr Pieter
Houterman,10 the beacons of Erf 4[...]0 were detected and/or replaced
(“opgespoor en/or herplaas”, in Mr Houterman’s words). He discovered that
the wire fence between erven 4[...]0 and 4[...]1 did not follow the cadastral
boundary between them.
28. Mr Houterman further determined the encroachment to be in the shape of a
long, thin triangle. The fence and the beacon coincided at the back of the
erven (near the existing building on erf 4[...]1) but the fence gradually
deviated from the cadastral boundary until it reached the municipal road near
the entrances to the erven about 150m away. At that point the fence
10 Called by the plaintiff as expert witness.
8
encroached about 2.5 metres into erf 4[...]0.11
29. The discovery of the non- alignment of the fence and the cadastral boundary
on 22 March 2019 led to the parties' dispute.
30. The wire fence between erven 4[...]0 and 4[...]1 is old and rusted. It has
several strands of wire (the original strands were barbed) and metal rods and
wooden posts. Many of the metal rods are thin, while others are more
substantial Y or I droppers. The wooden posts are round poles, or “latte”.
The fence was evidently intended to be a permanent structure.
31. As indicated earlier, the fence is attached to a railway sleeper constitutes the
common southern corner beacon between erven 4[...]0 and 4[...]1, behind
the house on erf 4[...]1. It then runs parallel to, and within a few centimetres
of, the house, whereafter it continues to run up to the north-western entrance
of erf 4[...]1 on the Malgas/lnfanta road. It re-commences on the other side of
the road, terminating close to the Breede R iver. The two sections of the
fence are in a straight line.
32. Mr Steinhofel testified on the plaintiff’s behalf that the fence had never been
moved after the plaintiff ’s purchase of the property. It continued to exist in
the same position it currently occupies as when he had first visited erf 4[...]1
a few months prior to the plaintiff taking transfer. W hen he first visited the
property, the fence was rusted and looked old. Three photographs which he
took of the driveway and the house, with the fence in view, were submitted
into evidence. They depict a straight and sturdy , if rusted and clearly old at
certain junctures, fence.
33. Mr Steinhofel accepted, at the time of the plaintiff’s purchase of the property,
that the wire fence was the boundary of erven 4[...]0 and 4[...]1, and he
11 The extent of the encroachment appears from a·diagram prepared after the survey by Mr
Houterman (drawing number E 420M_tp), which depicts both the “existing fence” and the
cadastral boundary. It also shows the extent to which the north-western wall of the building
on erf 4[...]1 crosses the cadastral boundary. The drawing was attached to the
summary of Mr Houterman’s expert evidence under Rule 36(9).
9
regarded it as such. He repaired it from time to time . On occasion, sheep
had grazed in the property and were kept inside by the fence. Mr Steinhofel
was, until March 2019, unaware of any dispute about the boundary.
34. The time period between the plaintiff ’s taking possession of the property (in
1991) and the arising of the dispute with the defendant (in 2019) is 28 years.
If Mr Steinhofel's evidence is accepted (and there is in my view no reason
why it should not be) , then the question arises whether the fence had been
regarded as the boundary between erven 4[...]0 and 4[...]1 from April/May
1989.12 If so, it would amount to a period of 30 years, the requisite period for
the purposes of acquisitive prescription.
35. The evidence of Mr Leon Nabal13 was that the same fence was there when
he had first visited erf 4[...]1 in January 1989. It was not new, but it was
“sturdy”. Mr Nabal confirmed that the fence had commenced at the railway
sleeper and had run close along the side of the house, and that it had then
continued in a straight line down to the Breede R iver, broken only by the
Malgas/lnfanta road.
36. He testified that when he w anted to extend the jetty on the river edge of erf
4[...]1 he looked for the corner beacon on the riverside portion of erf 4[...]1
with the help of the local shopkeeper , and found a peg which he believed to
be the beacon (and which the local shopkeeper informed him was the
beacon) buried in the ground exactly in line with, and in the ground below ,
the fence. Mr Nabal testified that when he returned
14 to erf 4[...]1 about
month prior to the trial , the fence was where it had always been. He said
that he told Mr Steinhofel about the peg which was in line with the fence, and
excavated it to show to Mr Steinhofel. Mr Nabal identified this peg as a
12mm peg on one of the photographs tendered into evidence.
37. Mr Steinhofel testified how, after the dispute arose, one of the plaintiff's
12 Mrs Nabal took transfer of the property during March 1989.
13 Mrs Nabal’s husband.
14 During April 2023.
10
labourers (one “ Nathi”) had informed him that there was another peg in
addition to the true beacon which had been unearthed by Mr Houterman.
Nathi then dug and found the same peg which Mr Nabal had found more
than 25 years before. Mr Steinhofel confirmed that it was the same peg
which Mr Nabal had pointed it out to him when he had recently visited the
property.
38. Mrs Nabal's evidence was that she had also recently visited erf 4[...]1 , and
that the fence appeared to be the same as the fence which had existed
between even 4[...]1 and 4[...]0 when she had owned the former. She
testified that her children had played in the garden bounded by the fence. Mr
and Mrs Nabal both testified that they had always regarded the fences
around erf 4[...]1 as the property's boundaries. No- one had ever suggested
to them that the fences were not its boundaries.
The defendant’s pleaded case, and an assessment of the evidence
39. The defendant’s pleaded case15 is based on five contentions, namely that:
39.1. at the time of the consolidation of erven 4[...]1 and 4[...]4 the land
surveyor (who was Mr Houterman) pointed out the true beacons
between erven 4[...]0 and 4[...]1, and the plaintiff was thus aware
thereof, alternatively, should reasonably have been aware thereof;
39.2. any fencing near or along the boundary between erven 4[...]0 and
4[...]1 was old paddock fencing in place before 15 October 1971;
39.3. alternatively, the plaintiff or Mr Steinhofel erected the fence during
or about 2010;
15 The defendant's case was initially (as set out in a letter from his attorney to the plaintiff's
attorney in May 2019) that Mr Steinhofel had been told about the position of the boundary
pegs in 1997; that his employees had illegally deposited building rubble in the river; and that
he erected an illegal fence onto erf 4[…]9. It is not necessary to consider the allegations of
unlawful conduct as they are irrelevant to the present dispute.
11
39.4. the plaintiff concealed the true beacons; and
39.5. as a result , the defendant and his predecessors -in-title were
unaware of the encroachment and did not know where the true
beacons were.
40. I shall return to these contentions after briefly setting out the evidence led on
the defendant’s behalf.
41. Although the defendant did give evidence, he could not give any evidence
regarding the purpose or the positioning of the fence prior to March 2019.
16
He relied in that respect on the evidence of Mr Francois van der Merwe and
Mr Ferdi Cronje.
42. Mr van der Merwe testified that he had stayed on the plaintiff's property while
he worked as a security officer for the plaintiff from about 2005 or 2006 to
about 2006 or 2007. W hen he arrived at the property , the stone entrance
walls had already been built, as had two cottages and the paddock fencing.
43. Mr van der Merwe said that the driveway and the fence looked similar to
those depicted on some of the recent photographs tendered into evidence on
behalf of each of the parties . The avenue of olive trees was planted along
the entrance way during the time that Mr van der Merwe stayed there. He
testified that thereafter, but for the size of the olive trees, the driveway looked
similar to what it looks like on a recent photograph showing the driveway and
trees leading up to the house. He testified that the olive trees were on the
left-hand side of the fence as you drove into the property (that is, on the
driveway side of the fence) as shown in the photograph. Mr van der Merwe
said that the fence started behind the house, that it ran alongside the house,
more or less parallel to it and within a few centimetres of it, and that it
thereafter continued to run in a straight line towards the road and the river.
16 The defendant took transfer of the property in February 2019.
12
44. Despite his evidence that the fence had continued to run in a straight line, Mr
van der Merwe testified that the fence had ended up somewhere near the
middle of the stone wall entrance way, and not where it currently ends ,
namely at a fence post at the edge of the stone wall. Where Mr van der
Merwe placed the fence was about 1.5m or 2m from where it currently ends.
The imaginary cadastral boundary line would have run along the other end of
the stone wall about 2.5 metres away.
45. Mr van der Merwe also testified that there was a fence that ran “right up
against” the windmill on the river side of the road, and that that portion of the
fence and the fence on the other side of the road lined up in a straight line.
Mr van der Merwe testified that he once had to “ work through the fence” to
replace rubbers on the windmill. He did not know whether there was a fence
along the line where there is currently a fence on the river -side portion. He
said that it was too overgrown at that time for him to have known whether
there was a fence there.
46. Mr van der Merwe testified that he did not know if the fence had been moved
and that he did not move it , but he also testified that he presumed it had
been moved, based on the photographs he has seen: as indicated, he
testified that the fence did not run along the line it currently does to end
where it currently ends. He conceded, however, that he had had no reason
to give any consideration to the fence at the time he lived on the property ,
that he had been on the property for only 2 or 3 years, and that he had not
gone and looked at the fence again since leaving the property . His evidence
was based on what he saw on the photographs used in evidence. A lthough
he had driven past the property many times subsequently , he had not
noticed that there had been any change in the fence.
47. I agree with counsel for the plaintiff’s criticisms of Mr van der Merwe’s
evidence. He r efused to acknowledge that he could be mistaken, and
remained adamant on the two points that he apparently believed would
assist the defendant, namely where the fence ended, and the alleged
existence of a fence close to the windmill. He attempted to suggest that the
13
fence had originally been along or close to the cadastral boundary.
48. There are many improbabilities in his version. First, it was improbable, as Mr
van der Merwe conceded, that the windmill would have been erected 17
virtually on top of a fence.
49. Second, in about 1990 Mr Leon Nabal had observed that the fence on the
river side had been exactly in line with the peg which he saw again in April
2023, and the fence on the river side had lined up exactly with the fence on
the other side of the road. If Mr Nabal is to be believed (there is no reason
not to) then the fence to the south of the road was moved after the Nabals
had left the property . N o reason for this was , however, provided, and none
seems to exist : why would the fence have been moved closer to the
plaintiff’s entrance way? Mr Steinhofel would have had no incentive to move
the fence closer to his driveway.
50. Third, the fence would have had to have been moved back into the exact
position it had been when the Nabals had owned the plaintiff’s property ,
because that was how Mr Nabal saw and remembered it.
51. Fourth, if the fence ran parallel to the house and carried on straight, then it
ends up where it currently ends up (as Mr Steinhofel, Mr Nabal, and Mr
Houterman all testified). It does not end up where Mr van der Merwe
suggested it did.
52. Fifth, if the fence terminated where Mr van der Merwe says it terminated in
about the middle of the stone wall, then the fence would have had to have
deviated significantly somewhere close to the stone entranceway. This is,
however, inconsistent with Mr van der Merwe's testimony that the fence had
been straight.
53. Sixth, if the fence ran straight from the windmill through the middle of the
17 Mr Steinhofel erected the windmill after the plaintiff had taken transfer of the property.
14
stone entranceway wall, it would have ended up somewhere on the hillside
of erf 4[...]0, and not at the railway sleeper at the back of the plaintiff’s
property as it does.
54. Seventh, on Mr van der Merwe’s version the fence would have been on the
wrong side of many of the olive trees planted on the right -hand side of the
plaintiff’s driveway. It is improbable that Mr Steinhofel (or any landowner)
would knowingly have planted his avenue of trees on neighbouring land.
55. Eighth, the stone wall at the entrance way would have been built beyond the
apparent boundary of the plaintiff’s property , and would have continued for a
metre or more along the boundary of erf 4[...]0, which is also improbable.
56. Ninth, Mr van der Merwe's evidence of having to climb through a fence to
work on the windmill is unlikely given that the fence was (on his version) only
on one side of the windmill, and it therefore would have accessible (bushes
notwithstanding) from another side.
57. Notably, Mr van der Merwe's evidence did not coincide with the defendant's
case either (to the extent that the defendant suggested that the fence
originally ran to the real north- east beacon). From the defendant's
perspective as it became clear over the course of the trial ( namely that the
fence had been the real boundary fence but had been moved) Mr van der
Merwe would therefore have had to have been mistaken about where the
fence ended up in relation to the stone wall, and where it ran in relation to
the windmill.
58. The answer to Mr van der Merwe's evidence was provided when a
photograph was put to him during cross -examination, which appeared to
show (and which Mr Ferdinand Cronje
18 later acknowledged it showed) the
fence post during the floods of 2008 in the position in which it currently is.
18 A witness called on the defendant’s behalf.
15
59. Mr v an der Merwe's evidence was also contradicted by the concessions
eventually made by Mr Cronje, albeit that the latter was an unimpressive
witness who changed versions when the shoe pinched . Again, I agree with
the plaintiff’s counsel’s criticisms of Mr Cronje’s evidence. He was a former
employee of Mr Steinhofel's (having eventually been dismissed) and
appeared antagonistic towards him. Mr Cronje had worked on the plaintiff’s
property on two occasions, from about 2010 or 2011 for about 3 years, and
again (after about 2 years away) for about 4 years.
60. Mr Cronje testified in chief that the fence post at the stone wall at the
Malgas/lnfanta road had been in the same position as Mr van der Merwe had
testified. He also testified that , like Mr van der Merwe, he too had had to
climb over or through a wire fence to work on the windmill. He then testified
(still in chief) that he had been instructed by Mr Steinhofel to move the fence
into the property of erf 4[...]0 so that the service lines and cables running to
the house on erf 4[...]1 were within the fence. According to Mr Cronje, the
service lines (whose location he denied knowing) would have run on erf
4[...]0's side of the fence if it had not been moved. He testified that when the
defendant had accidentally damaged the electrical cable 19 to Mr Steinhofel's
house the cable had been located 2m into the defendant’s property. Mr
Cronje was requested to repair the cable.
61. It became unnecessary to consider the improbability of Mr Steinhofel
having run the services to his house on the defendant’s side of the fence
because, after Mr Cronje had seen the photograph of the fence post in
the 2008 flood,20 his evidence changed. Although he vacillated from time
to time , his evidence during cross -examination culminated in the
concession that the fence post ’s current position is where it has always
stood. He testified that he never moved the fence anywhere near the
house, and he never moved the fence anywhere else.
62. Mr Cronje testified (in the end) that he might have taken out a few fence
19 An incident also referred to by the defendant and Mr Steinhofel.
20 The 2008 photograph which was also shown to Mr van der Merwe.
16
poles but that was only so that holes could be dug for new trees , and that
he had taken care to replace the fence poles in the same place. He
therefore confirmed that where the fence currently runs is where it has
always run. His evidence that the electrical cable which he had repaired
had been 2m on the defendant’s side of the fence was contradicted by
the defendant, since it was clear from the defendant’s evidence that the
cable had been on the cadastral boundary, on erf 4[...]1's side of the
fence: the defendant testified that work had to be done on both sides of
the fence so as to repair the cable.
63. It is useful to return to the defendant’s five pleaded contentions against the
background of the evidence set out above.
64. As to the defendant’s first contention (that at the time of the consolidation of
erven 4[...]1 and 4[...]4 the land surveyor had pointed out the true beacons
between erven 4[...]0 and 4[...]1), both Mr Houterman and Mr Steinhofel
testified that this never occurred. There is no reason to disbelieve them . I
agree in any event with the plaintiff’s argument that, even had the contention
been correct, it would not have mattered provided that the plaintiff continued
to possess the land up to the fence in the manner required for acquisitive
prescription.
65. The defendant's second (any fencing near or along the boundary between
erven 4[...]0 and 4[...]1 was old paddock fencing in place before 15 October
1971) and third (the plaintiff or Mr Steinhofel erected the fence during or
about 2010) contentions are mutually exclusive, albeit that they are couched
in the alternative. There was no evidence to support the second contention,
and it is inconsistent with the presence of the well - constructed fence Mr and
Mrs Nabal saw when they visited the property in early 1989. Also, it would
have been highly coincidental that the paddock fencing just happened to
follow, almost exactly, the actual boundary. The present fence was clearly
intended to be a permanent boundary fence.
66. Similarly, no evidence was adduced to support the third contention; and it is
17
inconsistent with the evidence of Mr and Mrs Nabal, as well as Mr Steinhofel.
It is also inconsistent with the expert opinion of Mr Houterman, namely that
the fence had existed for more than 30 years.
67. The defendant's fourth contention is that the plaintiff concealed the true
beacons. He provided nothing in support of this allegation, which was in any
event refuted by the evidence. It would also have been legally irrelevant,
provided the plaintiff possessed the strip of land openly and as if it were the
owner thereof.
68. The defendant's fifth contention depends on proof of the factual allegation
underpinning the fourth contention, namely that the plaintiff concealed the
true beacons. Assuming, however, the correctness of the defendant's factual
allegation, his fifth contention is that the plaintiff's concealment of the true
beacons caused him and his predecessors -in-title “to be uninformed of such
encroachment” and to have “no knowledge as to the true beacons”. Even if
the fifth contention is true (that the defendant and his predecessors -in-title
were unaware of the encroachment and did not know where the true
beacons were), this does not help him. This is because a lack of knowledge
on the part of the true owner is irrelevant : an owner's inability to know that
his property is being occupied by another is no defence to a claim of
acquisitive prescription.21
69. The defendant's real case - as it emerged during the trial - was that the fence
had been moved in about 2010. The suggestion that the fence could have
been moved was made to Mr Nabal during cross -examination. He
responded that he believed he would have noticed even if the fence had
been moved only a little way. Subsequently, during the cross -examination of
Mr Steinhofel, it was pertinently put to him that the fence had been moved by
Mr Cronje. Mr Steinhofel denied this. This case had not been foreshadowed
in either the pre- litigation correspondence from the defendant's attorney , or
the defendant's plea or counterclaim.
21 Pienaar v Rabie 1983 (3) SA 126 (A).
18
70. The parties have, to a limited extent, presented mutually destructive
versions. Given the retraction by Mr Cronje, the only evidence
inconsistent with the plaintiff's case was Mr van der Merwe's evidence
regarding the north-west fence post.
71. The approach when determining which of two mutually destructive
versions should be accepted was restated in Stellenbosch Farmers
Winery Group Ltd and another v Martell et Cie and others:22
“… To come to a conclusion on the disputed issues a court must make
findings on (a) the credibility of the various factual witnesses; (b) their
reliability; and (c) the probabilities. As to (a), the court's finding on the
credibility of a particular witness will depend on its impression about the
veracity of the witness. That in turn will depend on a variety of subsidiary
factors, not necessarily in order of importance, such as (i) the witness'
candour and demeanour in the witness -box, (ii) his bias, latent and blatant,
(iii) internal contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf, or with established fact or with his
own extracurial statements or actions, (v) the probability or improbability of
particular aspects of his version, (vi) the calibre and cogency of his
performance compared to that of other witnesses testifying about the same
incident or events. As to (b), a witness' reliability will depend, apart from the
factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he
had to experience or observe the event in question and (ii) the quality,
integrity and independence of his recall thereof. As to (c), this necessitates
an analysis and evaluation of the probability or improbability of each party's
version on each of the disputed issues. In the light of its assessment of (a),
(b) and (c), the court will then, as a final step, determine whether the party
burdened with the onus of proof has succeeded in discharging it. The hard
case, which will doubtless be the rare one, occurs when a court's credibility
findings compel it in one direction and its evaluation of the general
22 2003 (1) SA 11 (SCA) at para [5].
19
probabilities in another. The more convincing the former, the less convincing
will be the latter. But when all factors are equipoised probabilities prevail.”
72. In Body Corporate of Dumbarton Oaks v Faiga 23 the trial court was
admonished for having ignored the probabilities and for not having had
regard to the expert evidence regarding the probabilities:
“The occurrence, Joubert AJ found ... was unexpected and remains
unexplained. It was not maintenance- related. The undisputed expert
evidence is that such 'once- off occurrence' is highly improbable and 'very,
very unlikely' ....
…. The Judge's failure to decide the case without regard to the wider
probabilities is a clear misdirection and entitles us to reassess Mrs
Shiloane's evidence. It was also wrong of the Judge to consider that a non-
acceptance of her evidence of necessity requires a finding that she is a
deliberate liar and perjurer.... That is an emotional approach. In a civil trial
the question is whether her evidence is, on the probabilities correct. Few
witnesses whose evidence is not accepted can be described as deliberate
liars and perjurers .... In view of the technical evidence recited earlier, Mrs
Shiloane's evidence is inherently improbable ....
…. In my judgment the Court a quo should have held that the plaintiff had
failed to prove on a balance of probabilities that the cause of the incident
was as described by Mrs Shiloane.”
73. It is clear from these dicta that the probabilities are paramount.
74. The present matter is not a case where all factors are equipoised. I have
indicated above that Mr Van der Merwe's evidence was implausible and
contradictory. The probabilities are stacked against it. By his own admission
he had not had any regard for the fence while he worked at the plaintiff’s
property up until 2008, and he had not had any reason to think about it until
recently. That his evidence was echoed in similar terms by Mr Cronje (who,
23 1999 (1) SA 975 (SCA) at 978I-980H.
20
as far as credibility is concerned, did not make a favourable impression at
all)24 adds to the conclusion that it was rehearsed.
75. In this case the probabilities weigh heavily in the plaintiff's favour . In any
event, to succeed in establishing its version, the plaintiff need not prove
that its version is the only possibility or the only reasonable possibility, but
only that it is the most readily apparent and acceptable conclusion.25
Did the plaintiff satisfy the requirements of acquisitive
prescription?
76. The plaintiff must prove four elements to establish that it has become the
owner of the strip of land:
76.1. possession of the strip of land by it and previous owners of erf
4[...]1;
76.2. openly;
76.3. as owners; and
76.4. for an uninterrupted period of thirty years.
77.
It was held26 that a plaintiff prima facie satisfies the requirements of nec
vi, ne c clam, ne c precario by “ proving peaceable and open occupation
adversely to and, therefore, to the exclusion of the right of the true owner
for thirty years”.
27
78. Once a person establishes the requirements for acquisitive prescription,
he establishes his ownership of the thing in question. The former owner
cannot defeat the claim by alleging an absence of negligence on his part,
24 I say this being aware of the distinction between credibility and the probabilities as highlighted
in Dumbarton Oaks.
25 AA Onderlinge Assuransie-Assosiasie Bpk v De Beer 1982 (2) SA 603 (A) at 614E-H.
26 With reference to the 1943 Act, but requirements in the 1969 Act do not differ materially
from those posed in the 1943 Act (Cillie v Geldenhuys 2009 (2) SA 325 (SCA) at para
[8]).
27 City of Cape Town v Abelsohn's Estate 1947 (3) SA 315 (C) at 326, quoted with approval
in Bisschop v Stafford 1974 (1) SA 1 (A) at 9E.
21
or by alleging it was impossible for him to have known that part of his
property was being occupied by another, or by alleging that because of
ignorance on is part he did not exercise his rights of ownership over the
property in question.28
79. I turn to the individual requirements in the context of the evidence.
Possession
80. The possession required to establish ownership of land through
acquisitive prescription is possessio civilis, being the physical control of
the property (detentio) accompanied by the intention of an owner (animus
domini).
29
81. The mental element of possessio civilis (that is , the “intention of an
owner”) is expressed by the requirement of the 1969 Act that physical
control be exercised “as if he were the owner ”.30 That aspect is
considered separately below, under the requirement “as owners”.
82. Detentio does not require continual physical occupation. A person has
detentio even if he leaves the property but can resume occupation at any
time. What is require d is that the person should exhibit the power at his
will to deal with the property as he likes, and to exclude others. 31 The
test for physical possession “is whether a reasonable person would draw the
inference that the occupation and use in question established occupation of
the unit claimed”.32
83. That the plaintiff (or persons on its behalf) might not have walked over
every inch of the land (or even over any of it) does not affect its right to
rely on prescription:
“It is not necessary that every part of the area be
28 See Pienaar v Rabie 1983 (3) SA 126 (A).
29 Joles Eiendom (Pty) Ltd v Kruger and another 2007 (5) SA 222 (C) at para [28].
30 D. Carey-Miller The Acquisition and Protection of Ownership (Juta & Co., 1986) p. 66.
31 Ex parte Van der Horst: In re Estate Herold 1978 (1) SA 299 (T) at 301F-G .
32 Welgemoed v Coetzer and others 1946 TPD 701 at 723.
22
occupied or used; in some circumstances use of every square foot of an
area would be impracticable, and the test is whether there was such use of
the part or parts of the ground as amounts, for practical purposes, to
possession of the whole.”
33
84. Occupation can be established merely by showing, as in the present matter ,
that the land in question formed part of and was treated for all practical
purposes as a single physical entity. It was incorporated into erf 4[...]1 by way
of the fence, which constitutes use adverse to the true owner. 34 This
establishes at least prima facie proof of possession. An observer at any time
while the fence was in position would have formed the impression that the
strip of land was part of the plaintiff’s property.
35
85. It is clear from the evidence that the plaintiff has exercised phys ical
possession of the strip of land since purchasing erf 4[...]1 through Mr
Steinhofel, and through the plaintiff’s employees on its behalf . The plaintiff
also made permanent improvements to the strip by planting trees, moving
rocks, and laying down pipes for services. That is the conduct of someone
who holds the land in question as if he were the owner.36
86. The defendant did not advance any evidence of his own in relation to his
own use and possession of the land, and was unable to gainsay the plaintiff's
evidence.
Possessing “openly”
87. This requirement in s ection 1 of the 1969 Act corresponds with the "nec
clam" requirement of the 1943 Act. It was defined for the purposes of the
1943 Act as “so patent that the owner, with the exercise of reasonable care,
33 Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd and another 1972 (2) SA 464 (W)
at 467H-468A.
34 See Pienaar v Rabie 1983 (3) SA 126 (A); Payn v Estate Rennie and another 1960 (4) SA
261 (N).
35 Ex parte Van der Horst: In re Estate Herold 1978 (1) SA 299 (T) at 300H-301A.
36 Joles Eiendom (Pty) Ltd v Kruger and another 2007 (5) SA 222 (C) para [ 31].
23
would have observed it”.37
88. The plaintiff’s counsel referred in argument to Carey Miller ’s observation that
the practical effect of this dictum “is to require the claimant to establish that
the nature of his possession was such that a reasonable man would have
been aware of it”.38 In the present case, the strip of land was enclosed by
a fence and physically formed part of erf 4[...]1. Owners of erf 4[...]0
could not help but to have been aware of this. The plaintiff and its
predecessors-in-title never hid their claim to the area.
Possessing "as if the owner"
89. The plaintiff and its predecessors- in-title were required to have held the
strip of land “as owner ”. This is the correlative of the requirements “ nec
vi” and “nec precario”39 of the 1943 Act. The test is objective: “The test to
be applied is whether a reasonable person would infer from the
circumstances of the claimant's possession that the property was held 'as if
by the owner'. There must be sufficient acts of ownership by the claimant to
support such an inference .... there is no fixed or final set of appropriate fact
situations. The right of ownership can be manifested in a variety of ways.”40
90. The mental state of possessing as if one is the owner covers both the
bona fide possessor and the mala fide possessor,
41 and p ossession in
the bona fide but mistaken belief that one is the owner suffices.42
91. Possession even in the knowledge that one is not the owner is sufficient,
provided one occupies the land as owner or with the intention of keeping it
for oneself. As long as the possessor does not manifest a recognition of the
37 Smith & others v Martin's Executor Dative (1899) 16 SC 148 at 151; and see Bisschop v
Stafford 1974 (3) SA 1 (A) at 8A.
38 D. Carey-Miller The Acquisition and Protection of Ownership (Juta & Co., 1986) pp 163-
164, with reference to Briers v Wilson and others 1952 (3) SA 423 (C) at 433D.
39 See Smith and others v Martin’s Executor Dative 16 S.C. 148 at p. 151.
40 D. Carey-Miller The Acquisition and Protection of Ownership (Juta & Co., 1986) p. 171.
41 Morgenster 1711 (Pty) Ltd v De Kock and others 2012 (3) SA 59 (WCC) at para [14].
42 Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd 1972 (2) SA 464 (W) at 474B.
24
true owner's rights, it does not matter that the possessor knows that he or
she is not the owner. 43
92. Returning to Carey-Miller:44 “The right of ownership can be manifested in
a variety of ways. An obvious situation which would satisfy the
requirement of possession as owner is that in which the possessor has
used the land of another on the basis of a genuine mistake as to the
boundary … In such a case the fact that the land was not identified as a
separate unit, but was simply treated by the claimant on the assumption
that it was part of his land, would probably be conclusive of the
requirement of possession ‘as if he were owner’.”
93. The presence of the fence is significant , given the objective test . The fence
embraces, on one side, the strip of land to which the plaintiff lays claim. It
incorporates, on the other side, the strip into the remainder of the plaintiff’s
property, making it an indivisible whole as a matter of appearance. Fences
are by definition used by property owners generally to mark property
boundaries across which access is controlled, restricted or prevented - this is
a matter of everyday knowledge and experience. The erection of a fence is
clear evidence of the belief of a person regarding his or her rights to the land
enclosed.
94.
In the present matter, for so long as the fence was in existence the
plaintiff and its predecessors have held the strip of land “ as owner”. The
area is indistinguishable from the rest of erf 4[...]1, and there is no reason
why anyone would have distinguished between the s liver and the rest of
erf 4[...]1. Ob jectively, everyone would have regarded the fence as the
outer extent of their property . Nei ther the Nabals nor the plaintiff ever
recognised the rights of the owners of erf 4[...]0 to the strip of land.
95. As regards the animus element, Mr Steinhofel's evidence on behalf of the
43 Campbell v Pietermaritzburg City Council 1966 (2) SA 674 (N) at 680B-C; and see
Welgemoed v Coetzer and others 1946 TPD 701.
44 Op cit at pp 73-74.
25
plaintiff was clear. Nobody ever suggested (prior to the arising of the
dispute) that the fence was not the boundary. Mr Steinhofel did not regard
the strip of land in dispute as being in any way different from the rest of erf
4[...]1. He regarded it as part of the plaintiff's property, and the plaintiff held it
as the owner.
Possessing for 30 years
96. The land is to have be en held for an undisturbed period of thirty years: “ ...
the required continuity of occupation need not be absolute continuity, for it is
enough if the right is exercised from time to
time as occasion requires and
with reasonable continuity”.45
97. As regards proof, “… In practice the claimant need do no more than
demonstrate that possession - including that of predecessors in title insofar
as this is relevant - endured for the thirty-year period to a sufficient degree to
justify the conclusion ... that the exercise of rights of ownership was
continuous. It will then be up to the defendant, who challenges the claim, to
establish that possession was not continuous - either in the general sense,
or by reason of the specific disturbance of continuity through the interruption
or suspension of possession'. 46
98. The defendant cannot deny that the wire fence (or one in a substantially
identical position) has been in position since at least January 1989, and
probably well before then. N obody disputed that the fence served as the
boundary between the two properties from at least January 1989 until March
2019. Prior to the plaintiff's purchase of erf 4[...]1 ownership up to the fence
was exercised by its predecessor in title, Mrs Nabal, and before her it would
have been exercised by Olivier.
99. One may infer from the fact that the fence commences at the common
45 Welgemoed v Coetzer and others 1946 TPD 701 at 720.
46 Carey Miller op cit at p. 177, and see Ex parte Van der Horst: In re Estate Herold 1978 (1) SA
299 (T) at 301C-D.
26
beacon at the back of erven 4[...]0 and 4[...]1 that it was intended to be a
boundary fence. This inference becomes all the more compelling given that
the fence was clearly intended to be a permanent structure, and given that it
almost exactly followed the actual boundary line at its commencement and
for some considerable distance thereafter. That the fence was intended to
be the boundary becomes clear when one considers that it followed a direct
line to another beacon (a peg in the ground, of similar size of various other
pegs used by land surveyors). No other reason for the erection of a fence
along this presents itself.
100. Further support for the conclusion that the fence was intended to be, and
was regarded by all concerned, as the boundary between erven 4[...]0 and
4[...]1 is the fact that there used to be parallel tracks on either side of the
fence. The one track led to the building on erf 4[...]1 (the photographs show
that the track ran along the same route as the current driveway to the
house), and the other to erf 4 […]9, towards the “rear” boundary with erf
4[...]1. This indicates not only that the fence was in position, but also that it
was regarded at the dividing line between the erven prior to 1989.
101. The present case bears similarities to the one set out in Margaret Loretta
de Haan v Cranberry Bush Property Investments (Pty) Ltd,
47 in which the
Court held48 that “..the wire fence was erected in1948, it physically separates
the properties from one another and was not moved or replaced from at least
1972 up and until the present dispute arose. … In my view it may reasonable
by presumed that the De Klerks regarded the fence as the boundary of their
property. If that is the case, then then clearly possessed the disputed land
openly and peacefully”.
102. There was , moreover, no particular benefit to be gained from deviating
from the actual boundary. The sliver of land between the fence and the
cadastral boundary was, and still is, not valuable. It is highly improbably that
47 Unreported decision of this Court (per Manca AJ) under case number 18595/2007, delivered
on 8 October 2008.
48 At paras [50]-[51].
27
the owner of 4[...]1 would have paid to us e it in the manner that it has been
used over the years.
Conclusion
103. The case is to be decided on the probabilities. The question is whether
the plaintiff's predecessors in title occupied the strip of land as of right. Their
state of mind is to be inferred from the facts.
49
104. As to the drawing of inferences, t he approach in civil cases is as
follows: “Now it is trite law that, in general, in finding facts and making
inferences in a civil case, the Court may go upon a mere preponderance
of probability, even although its so doing does not exclude every
reasonable doubt .... in finding facts or making inferences in a civil case, it
seems to me that one may, as Wigmore conveys in his work Evidence
(3rd ed., para. 32), by balancing probabilities select a conclusion which
seems to be the more natural, or plausible, conclusion from amongst
several conceivable ones, even though that conclusion be not the only
reasonable one.”
50
105. As indicated, on the available evidence it may reasonably be inferred that
the plaintiff's predecessors -in-title regarded the fence as the boundary. The
existence of the old fence is evidence of possession and control of the land.
It is also evidence of an intention to exclude the world at large from the full
extent of the property bounded by the fence. The fact that the fence has not
been moved since 1989 (at the latest) is also evidence that the possession
and control in question have remained undisturbed during all these years.
The defendant did not call any of the previous owners of erf 4[...]0 , and he
did not explain why he had not done so. Their evidence would presumably
not have helped his case.
106. On this issue, each of parties raised the failure of the other to call certain
49 See Bisschop v Stafford 1974 (3) SA 1 (A) at 9H-10C.
50 Govan v Skidmore 1952 (1) SA 732 (N) at 734A-B-D.
28
witnesses (the defendant criticised the plaintiff for failing to call Nathi, the
plaintiff’s labourer) and requested the Court to draw an adverse inference
therefrom. It has been held 51 that when “ a witness is equally available to
both parties, but not called to give evidence, it is logically possible to draw an
adverse inference against both. The party on whom the onus rests has no
greater obligation to call a witness, but may find that a failure to call a
witness creates the risk of the onus proving decisive. In the present matter
the appellant did not have an opportunity equal to the respondents to call this
witness. The adverse inference drawn by the trial court against the appellant
was unjustified in the circumstances. An adverse inference in any event does
not operate to destroy a case otherwise proved, which is what the appellant
managed to do”.
107. In the present case I am satisfied that the prima facie discharge of the
onus by the plaintiff has not been disturbed, and that the plaintiff has proved,
on a balance of probabilities, that it and its predecessors -in-title have
possessed the disputed strip of land openly, as owner, for a 30- year period.
It is not necessary to rely on an adverse inference against either party.
108. The plaintiff knew of no claim to ownership to the strip of land on its side
of the fence by any owner of erf 4[...]0 until the defendant made his claim in
March 2019. Nobody else was ever previously made aware of any
disagreement regarding the boundary. The defendant did not adduce any
evidence of such a claim. All of the evidence points to the fact that the
plaintiff's and the defendant's predecessors in title accepted the fence as
being the boundary between their properties.
109. The animus of Mrs Nabal's predecessors is also to be inferred from
the presence of the fence. They would have regarded the fence as the
boundary of their property, and they would thus have held all the land up
to the fence as owners thereof. The defendant did not suggest that there
had existed an agreement about the positioning of the fence in terms of
51 In Raliphaswa v Mugivhi and others 2008 (4) SA 154 (SCA) at para [15]. Emphasis supplied.
29
which the owners of erf 4[...]1 were allowed to occupy the strip of land by
way of any form of revocable permission . On the contrary, such
suggestion would be in conflict with the defendant's contentions as set
out in his pleadings . Even if, however, there had originally been such an
agreement, there can on the evidence be no suggestion that subsequent
owners (the Nabals or the plaintiff) ever knew about it.52 The evidential duty
to raise a precarious consent rested on the defendant, 53 because the plaintiff
"satisfies prima facie these requirements (for prescription) by proving
peaceable and open occupation adversely to and, therefore, to the exclusion
of the rights of the true owner for thirty years".
54
110. Thus, the mere fact that the fence has been in position between the
properties since some time before 1989 55 establishes inferentially that the
strip of land was "occupied" by the various owners of erf 4[...]1 "openly", and
"as owners".
111. Upon a holistic consideration of the evidence, I am satisfied that there are
no considerations in the present matter which excuse the defendant and his
predecessors from the ordinary consequences of prescription. They could
see the fence. They would have known that ordinary property owners regard
fences as boundaries. Accordingly, even if hardship were a consideration in
the present proceedings (which it is not), the order which is sought is not
unfair to the defendant. I do not regard the provisions of section 25
56 of the
Constitution of the Republic of South Africa, 1996, as being helpful to the
defendant in the particular circumstances of this matter, despite his counsel’s
52 Compare City of Cape Town v Abelsohn's Estate 1947 (3) SA 315 (C).
53 See also Margaret Loretta de Haan v Cranberry Bush Property Investments (Pty) Ltd
(unreported decision of this Court (per Manca AJ) under case number 18595/2007, delivered
on 8 October 2008) at paras [52]-[56].
54 City of Cape Town v Abelsohn's Estate 1947 (3) SA 315 (C) at 326. See Bisschop v Stafford
1974 (3) SA 1 (A) at 9D -H: "There is much to be said for the proposition - it would relieve a
claimant of the burden of proving a negative which he in many cases could not establish
simply because the passage of time has made it impossible."
55 The Nabals’ evidence as regards the existence of the fence and how they regarded it when
taking transfer of the property and thereafter, distinguishes the present matter from the facts
considered in Morgenster 1711 (Pty) Ltd v De Kock and others 2012 (3) SA 59 (WCC) at
paras [22]-[24], and para [38].
56 Section 25 provides that “no one may be deprived of property except in term of law of general
application, and no law may permit arbitrary deprivation of property”.
30
invocation of the provision.
112. I t is accordingly ordered as follows:
112.1. The plaintiff is declared to be the owner, by acquisitive
prescription, of the land between the cadastral boundary between
erven 4[...]0 and 4[...]1 Malagas and the “existing fence” as shown
on the contour and detail plan, drawing number E 420M_tp, dated
April 2019 / May 2022, by Bekker and Houterman Land Surveyors.
112.2. The defendant’s claim in reconvention is dismissed.
112.3. The defendant shall p ay the plaintiff’s costs in relation to the
latter’s claim and the defendant’s claim in reconvention, which
costs shall include the qualifying fees of Mr Pieter Houterman, land
surveyor.
____________________
P. S. VAN ZYL
Acting judge of the High Court
Appearances:
For the plaintiff: Mr D. Meluns ky SC , instructed by Michael
Ward Attorney
For the defendant: Mr E. Janse van Rensburg, instructed by
Johann Viljoen & Associates