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[2017] ZAKZPHC 11
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Padayachi v Pillay NO and Another (16587/2015) [2017] ZAKZPHC 11 (16 March 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZYLY-NATAL
DIVISION, PIETERMARITZBURG
Case
no: 16587/2015
In
the matter between:
SHALENDRAN
GOPAUL
PADAYACHI APPLICANT
versus
CHANDRAKANTHI
PILLAY
N.O FIRST
RESPONDENT
DHARAM
NAICKER
N.O SECOND
RESPONDENT
JUDGMENT
MADONDO
AJP:
Introduction
[1]
The applicant, the registered owner of the Remainder of Erf [..]52,
Pietermaritzburg, seeks an order declaring him to have acquired
by
prescription a servitudal right of way over the property, the
Remainder of Erf [..]53, Pietermaritzburg, whose registered owner
is
the late Vengadalam Narrainsamy Padayachi (the Applicant’s
grandfather), and in respect of which the first and second
respondents are co-executors. Secondly, directing the respondents to
sign all documents necessary to have such servitude registered
against the title deed of Erf [..]53 in favour of Erf [..]52.
[2]
The first and second respondents are opposing the granting of such
order on the grounds that the applicant and his predecessor
in title,
his father, never used the driveway or lane in question as if they
were the owners thereof but they did so with the consent
of their
(respondents’) brother, Narrainsamy Nadesan (NN), who was then
an executor in the estate late of their father, Vengadalam
Narrainsamy Padayachi.
Factual
Background
[3]
Vengadalam was married in community of property to Lyamah Padayachi;
the mother of the respondents and the grandmother of the
applicant,
who is also now deceased. The first and second respondents are joint
executors of the estate late of both Vengadalam
and his wife, Lyamah.
[4]
Vengadalam acquired various properties in Pietermaritzburg, situated
in Church Street and Loop Street respectively. Vengadalam
and Lyamah
made wills on 19 September 1955 and 17 November 1955 respectively.
Vengadalam passed away on 13 January 1966 and Lyamah
on 7 March 1969.
However, before his death, Vengadalam donated and transferred Erf
[..]52 to the applicant’s father, Narrainsamy
Sholendran
Padayachi (NS), which on his death passed onto the applicant through
testamentary succession.
[5]
Erf [..]52 and Erf[..]53 are adjoining each other. They were
originally both owned by Vengadalam, the applicant’s
grandfather.
Erf [..]53 is registered in the name of the applicant’s
grandfather. It is still so registered as the estate of his late
wife, Lyamah, has not been finalised due to certain conditions in
their wills (Vengadalam’s and Lyamah’s). In
terms
of the will it is required that the devolution of the properties,
movable and immovable, shall not take place until all liabilities
and
debts are liquidated and discharged by the estate and, further, until
his unmarried son Narrainsamy Nadesan Padayachi (NN)
and unmarried
daughter, Chandrakanthi Pillay, have married and further until the
death of his wife, Lyamah.
[6]
As a result of the non-fulfilment of the condition as contained in
clause 15 of Vengadalam’s will of his son NN getting
married,
the property Erf [..]53, Vengadalam had bequeathed to NN, did not
devolve upon the latter. But, NN remained in this property,
as it was
his parental house, until his death on March 2012.
[7]
The same provisions are contained in the will of Lyamah. Though she
died on 7 March 1969 the winding up and distribution of
her estate
have not yet been finalised. Four sons and seven daughters were born
of the marriage between Vengadalam and Lyamah.
The applicant’s
father was their second born child, and the second son. NN was their
third child and their third son. The
first child and son was
Narrainsamy Poopenthren Padayachi (NP). The respondents are the only
surviving children of Vengadalam and
Lyamah. When Vengadalam died on
13 January 1966, NN was appointed the executor in his estate. Once
again when his wife, Lyamah
died on 7 March 1969, NN was appointed
executor in her estate late. When NN died on 30 March 2012 the
respondents replaced him
as the joint executriks in the estate late
of both Vengadalam, their father, and Lyamah, their mother.
[8]
In fact, in terms of the will drawn by Vengadalam four persons were
appointed joint executors of his estate, namely; his wife,
Lyamah;
his oldest son, Narrainsamy Poopenthren Padayachi (NP); his middle
son, Narrainsamy Sholendran Padayachi (NS), the father
of the
applicant, and his youngest son, Narrainsamy Nadesan Padayachi (NN).
Lyamah in her will she appointed her husband, Vengadalam,
NP and NS
as the executors in her estate late.
[9]
In respect of the control and management of the properties,
Vengadalam desired that his wife and three sons should jointly
control and manage same. In terms of the will NS should account to
his mother, Lyamah, in respect of all revenues received from
Vengadalam’s estate and pay through her from time to time the
liabilities due by Vengadalam’s estate.
[10]
In terms of the will until the devolution of Vengadalam’s
immovable properties to his sons, as his will provided, all
immovable
properties owned by Vengadalam should be controlled and managed by
his executrix and executors and an administratix and
administrators,
who would have power to collect rents, interest, debts, principle
sums due on any mortgage bond and all revenues
due to his estate and
should pay from time to time taxes and rates due in respect of his
immovable properties, carry out any repairs
and liquidate from time
to time any indebtedness due by him whether on mortgage bond or
otherwise.
[11]
Initially, it was Lyamah and her two sons; NP and NS who were charged
with the control and management of Vengadalam’s
properties.
However, as NP was a headmaster at a government school he could not
devote the whole of his time controlling and managing
the affairs of
Vengadalam’s Estate, he should in terms of the will be relieved
of his duty as far as it was possible.
[12]
Lyamah, the mother, passed away first on 7 March 1969. NS died on 16
March 1999. It is not disclosed when NP passed away. However,
it is
not in dispute that when the letters of executorship were issued to
NN on 5 December 2005, NN was the only surviving co-executor
of
Vengadalam’s estate. The applicant avers that Vengadalam in his
will stated that if NP could not undertake his office
due to his
commitments as headmaster, then only NS should be responsible for the
task. He goes on to state that Vengadalam made
no mention of his
intention that NN should have anything to do with the control
and management of his properties, after his
(Vengadalam’s)
death.
[13]
According to the applicant his father, NS, assumed the sole
responsibility for the control and management of Vengadalam’s
property, being assisted by NN. The applicant alleges that the joint
estate was
de facto
managed by his father with the assistance
of NN. This was the position since the death of Vengadalam in 1966
until the passing
away of the applicant’s father in 1999. It
was only then NN took the sole responsibility of administering the
properties
for the benefit of Vengadalam’s estate. According to
the applicant his father was the last surviving executor
testamentary.
[14]
It is common cause between the parties that during 1960, before death
of Vengadalam, the applicant’s father built a block
of flats on
Erf [..]52 which took the entire width of the premises thereof.
Access to the back of Erf [..]52 has since then been
gained via Erf
[..]53. The lane/driveway over Erf [..]53, giving access to the back
of Erf [..]52, has since been used by the applicant,
his father the
tenants and the officials of the Municipality. The lane runs on the
border of Erf [..]52 over Erf [..]53 for a distance
of approximately
43 metres. According to the applicant, the applicant’s father,
at his own costs, had compacted and resurfaced
the lane/driveway,
maintained and upkept it. The Msunduzi Municipality also built a
substation at the back of Erf [..]52 which
supplies electricity not
only to a large area around the block of flats and extending to the
other streets.
[15]
The applicant avers that he and his predecessor in title (his father,
NS) have since 1960 been exercising such right of way
openly,
peacefully and as of right, as if they were owners thereof. According
to the respondents the house at Erf [..]53 was a
matrimonial home of
their parents and the respondents’ parental home, and it was
where the respondents and all other siblings
were born and bred. In
fact, NN resided in this house until he met his death on 30 March
2012.
[16]
The applicant and his predecessor in title had according to the
respondents, an access to Erf [..]52 across Erf [..]53 with
the
permission of NN which he granted in his capacity as the executor of
the estate. An access via Erf [..]53 to the rear of the
back of flats
on Erf [..]52 was controlled. The gate was erected to control access
to Erf [..]52 across Erf [..]53 and the gate
was in fact always
locked. The keys to the gate were kept by NN. This was the position
since the erection of the block of flats.
The respondents are adamant
that the access that the applicant and his predecessor in title
enjoyed via the driveway/lane was with
the consent of NN, it was
periodical and that as such it could not establish a real right of
servitude in their favour. More so,
the applicant’s predecessor
in title was obliged to pay certain sums of money to NN as a
consideration for the use of the
driveway to park vehicles at the
rear of Erf [..]52.
[17]
The respondents go on to aver that the driveway is not the only
access to the rear of Erf [..]52. There is also a passage between
Erf
2451 and Erf [..]52 which is used by the municipality and the tenants
of the flats on Erf [..]52. In the respondents’
submission the
granting of a servitudal right of way over Erf [..]53 would seriously
detract from the value of the property.
[18]
The applicant alleges that the gate was installed by his father. He,
the applicant, and NN agreed to have the roller gate installed.
Both
NN and the applicant had keys to the gate. However, the applicant
admits requesting NN for the registration of the existence
of the
servitude over the lane against the title deed of Erf [..]53. He
advances reasons for so doing, as that he had a fear of
losing his
right to use the driveway in the event of NN passing away and the
property being sold to a third party who knew nothing
of such use.
[19]
The applicant avers that the gates were put up as a security measure
as the property administrators had experienced the problem
of
vagrants entering the property through the lane/driveway, urinating
and stealing copper wire on the premises. According to the
applicant
the gates were erected with his approval and assistance. The
applicant alleges that since the death of Vengadalam in
1966 until
1999 control of access to the lane/driveway was exercised by his
father. On the death of the applicant’s father,
the management
of the property passed on to NN, and at the time, according to the
applicant, the servitudal right of way had already
accrued.
[20]
The applicant denies that his father was obliged to pay certain sums
of money to NN for the use of the right of way or parking
the
vehicles at the rear of Erf [..]52. The “carpark money”
referred to in NN’s diary entry relates to money
collected by
his father from the tenants of Erf [..]53, which money NN would take
and bank in the estate account. The applicant
used to be present at
the meetings between his father and NN. The “monthly
statements” referred to in the diary entry
are the vouchers
pertaining to all expenses incurred on behalf of the estate or for
the amount of money expended by either the
applicant’s father
or NN. They would produce the vouchers at these meeting and they
would be refunded out of moneys collected
for the month. Entry
regarding a driveway gate for R900, three safety gates at R80, R240
and R120 relates to the expenses for the
erection of the gates on the
properties.
[21]
This response by the applicant has been prompted by the second
respondent’s version in her answering affidavit that NN
administered the immovable properties of the estate of both
Vengadalam and Lyamah so meticulously in that he made entries on
daily
basis in the diary of any event that had taken place. NN in his
diary make an entry in August 1993 that “Brother gave car
park
money half from August 1992 – July 1993 R772 plus monthly
instalments.”
Issue
[22]
The issue raised by the facts of this case is whether the applicant
and his predecessor in title have been using the right
of way over
Erf [..]53 openly, peacefully and as of right, as if they were owners
thereof.
[23]
Normally, proceedings for the relief sought in this case are brought
by way of action. In the present case, the applicant seeks
final
relief by way of Notice of Motion. Such proceedings are appropriate
for the resolution of legal issues based on common-cause
facts and
are not designed to determine probabilities. A litigant is entitled
to seek relief by way of notice. However, if he has
reason to believe
that facts essential to the success of his claim will probably be
disputed he chooses that procedure at his own
peril, for the court in
the exercise of its discretion might decide neither to refer the
matter for trial nor to direct that oral
evidence on the disputed
facts be placed before it but to dismiss the application. But if,
notwithstanding that there are facts
in dispute on the papers before
it, the court is satisfied on the facts stated by the respondent,
together with the admitted facts
in the applicant’s affidavits,
the applicant is entitled to relief (whether in respect of all his
claims or one or more of
them) it will make an order giving effect to
such finding, with an appropriate order as to costs. The court does
not exercise discretion
in motion proceedings whether or not to grant
claims established by the admitted or undisputed facts, except
perhaps in very extra
ordinary circumstances. The applicant has a
right to an order in respect of such claims. See
Tamarillo (Pty)
Ltd v BN Aitken (Pty) Ltd
1982 (1) SA 398(A)
at 430 G-H-431A.
[24]
In
Plascon-Evans Paints Ltd v Van Riebeeck Paints
[1984] ZASCA 51
;
1984 (3) SA
623
(A) at 634 H-635 C a rule was laid that where in proceedings on
notice of motion disputes of fact have arisen on the affidavits,
a
final order, whether it be an interdict or some other form of relief,
maybe granted if those facts averred in the applicant’s
affidavits, which have been admitted by the respondent, together with
the facts alleged by the respondent justify such order. In
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) para
26 Harms DP said:
‘
It may be
different if the respondent’s version consists of bald or
uncreditworthy denials, raises fictitious disputes of
fact, is
palpably implausible, far-fetched or so clearly untenable that the
court is justified in rejecting them merely on the
papers.’
See
also
South Coast Furnishers v Secprop Investments
2012 (3) SA
431
(KZP) at 433 G-H.
[25]
However, if the factual disputes raised in the papers are real,
genuine, bona fide and material and they cannot be resolved
on
papers, the court may adopt a different approach in dealing with the
application before it. It may either dismiss the application
on this
ground alone or refer the matter for the hearing of oral evidence on
the disputed facts. Also, a robust approach in motion
proceedings can
be taken and the matter decided on the probabilities, if clear
falsity emerges from the papers. See
South
Coast Furnishers’
case
at 439 F.
[26]
A real, genuine and bona fide dispute of fact can exist only where
the court is satisfied that the party who purports to raise
the
dispute has in his affidavit seriously and unambiguously addressed
the fact said to be disputed.
See
Wightman t/a JW Construction v Headfour (Pty) Ltd & another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA).
[27]
The question which I now have to decide is whether the factual
disputes raised by the respondents in the papers are real, genuine
bona fide and material disputes of fact, justifying the referral of
this matter for the hearing of oral evidence on them.
The
parties in this matter have asked this Court to decide the matter on
papers despite factual disputes it may find to exist in
the matter.
[28]
The respondents have placed facts before this court in support of
their allegation that the applicant and his predecessor in
title had
used the driveway/lane in question in order to have access to the
rear of Erf [..]52 with the consent of NN in his capacity
as the
executor of the estate late of Vengadalam, that such use was
periodical and that, in the premises, it could not have constituted
a
servitudal right of way over Erf [..]53 in favour of Erf [..]52. Such
facts include the correspondence between the applicant’s
erstwhile attorneys, Govender, Pather and Morgan Attorneys-at-law,
and NN attorneys, Masttross Incorporated, dated 10 September
2009 and
16 September 2009 respectively, annexed to the Respondents’
Answering Affidavit as “DN7” and “DN8”
respectively. These facts also touch upon the entries NN made in his
diary in which he recorded all the occurrences of his days
as the
executor and administrator of the estate in question. It should be
borne in mind that the correspondence and the diary referred
to above
are not per se in dispute save certain items of their contents. At
the time of the institution of these proceedings the
applicant must
have been aware of the contentious nature of these facts and that the
disputes of fact were bound to develop at
the motion proceedings.
[29]
Mr Ender for the applicant has argued that the second respondent,
being the deponent to the Answering Affidavit, was not involved
in
the events and circumstances on which she relies in opposing the
application and much of what she says is either hearsay or
pure
speculation. Strangely, what the second respondent states, finds
support in “DN7” and “DN8” in all
material
respects. In “DN8”, for instance, NN states categorically
that the driveway/lane in question was given to
the applicant and his
predecessor in title with his (NN’s) consent. NN adds that it
was periodical and that as such it clearly
could not establish a real
servitudal right of way in favour of the applicant. He does not end
there, but he goes on to state that
numerous gates had been installed
on the driveway over the past few decades. He concludes by saying
that the applicant’s
right of access to the driveway was not
adverse to his rights. This serves to corroborate the second
respondent’s version
that the applicant used the driveway with
the consent of NN and that NN had erected gates in order to control
access to the driveway.
These allegations cannot be said that they do
not constitute real, genuine bona fide and material factual disputes.
[30]
Also, it has been the applicant’s contention that when NN
erected the gates in order to block access to the driveway
a
servitudal right of way had already accrued to him and his
predecessor in title. However, the second respondent in her affidavit
states that since the erection of the block of flats NN was
exercising control over an access to Erf [..]52 via Erf [..]53. In
my
view, these are serious disputes of fact which the second respondent
has pertinently and unambiguously addressed in her affidavit,
being
supported by the correspondence and recordings referred to above. In
“DN7” the applicants have given instructions
to his
attorneys to demand from NN the removal of the control access gates,
all building material and any other obstruction on
the lane/ driveway
in question. This, also serves to corroborate the version of the
second respondent that the applicant used the
driveway with the
consent of NN. In the premises, it cannot be said that the version of
the second respondent consists bald and
uncreditworthy denials,
raises fictitious disputes of fact, is palpably implausible, so
far-fetched or so clearly untenable that
the court could be justified
in rejecting it merely on papers. Nor can it be said that the version
of the second respondent is
fanciful and wholly untenable or so
inherently improbable that it is untenable. It was, therefore,
improper for the applicant to
bring these proceedings on the notice
of motion well-knowing or should have known that serious disputes of
fact were bound to develop.
See
Room Hire Co (Pty) Ltd v Jeppe
Street Mansions (Pty) Ltd. 1949(3) SA 1155(T)
at 1162, 1168.
[31]
I now turn to decide whether the applicant has tendered any evidence
upon which a reasonable presiding officer acting reasonably,
might or
could have found for him coupled with the question whether any clear
falsity has emerged from his papers. The existence
of the falsity,
will justify the adoption of a robust approach and deciding the
matter on the probabilities. In which event, this
court must also
satisfy itself as to the inherent credibility of the applicant’s
factual averments in determining whether
he is entitled to the final
relief he seeks. See
Plascon Evans’
case 634H –
635C.
[32]
The applicant alleges that he and his predecessor in title have since
1966 to date been exercising the servitudal right of
way across Erf
[..]53 onto Erf [..]52 openly, peacefully and as of right, as if they
have been owners thereof. In support of his
claim the applicant
relies on the
Prescription Act 68 of 1969
.
Section 6
of this Act
provides:
‘…
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 predecessor in title,
constitutes an uninterrupted period of thirty years.’
[33]
This Act came into operation on 1 December 1970. Before this Act came
into operation, acquisition by prescription of servitude
was governed
by the Prescription Act 18 of 1943. Where the prescriptive period
began before the new Act came into operation but
was completed
afterwards, the 1943 Act applies in respect of the former and the
1969 Act in respect of the latter period. The relevant
provisions of
1943 Act define acquisitive prescription of a servitude as ‘the
use of a servitude in respect of immovable
property, continuously for
thirty years
nec vi, nec claim, nec precario.
In
Pezula
Private Estate (Pty) Ltd v Metelerkamp and Another
2014(5) SA 37
(SCA) para 10 Theron JA took a view that:
‘
Nec precario, the absence of a
grant on request, has been subsumed into ss1 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.’
[34]
Nec vi
may be understood as ‘peaceably’, and nec
clam as ‘openly’ – a ‘so patent’ that
the owner,
with the exercise of reasonable care, would have observed
it.
See
Bisschop v Stafford
1974(3) SA (AD) at 8
.
In
Smith
and others v Martin’s Executor Dative,
16
S.C, 148
at p. 151 De Villiers CJ said that
nec
precario:
‘
does not mean without
permission or with consent in the wide sense…., but ‘not
by virtue of a precarious consent’
or in other words ‘not
by virtue of a revocable permission’ or ‘not on
sufference.’
[35]
The Appeal Court in
Malan v Nabygelegen Estate
1946 (AD) 562
at573 defined a pre carium as:
’
something
of which the use is granted at the request of the grantee for so long
as the grantor is willing to allow him to have it.’
[36]
Precarium is the legal relationship which exists between the parties
when one party has the use or occupation of property belonging
to the
other on sufferance, by the leave and licence of the other. Its
characteristic is that the permission to use or occupy
is revocable
at the will of the person granting it. See
Malan
case at 573.
In the acquisition of ownership by prescription,
nec precario
postulates the absence of a grant on request. The request and
grant need not be express but may be effected tacitly, in such
a case
it might be well that the requirements for establishing a tacit
agreement should be met. See
City of Cape Town v Abelsohn’s
Estate
1947 (3) SA 315
(C) at 327-328;
Bisschop v Stafford
case
at 8 A-D. Whether the consent is express or tacit has a
similar legal consequence that its proof shows that the acquirer did
not
act as if he or she was entitled to a servitudal right.
[37]
In
Malan
case at 574 Watermeyer CJ pointed out:
‘…
mere occupation of
property ‘
nec vi nec
clam nec precario’
for a period of thirty years does not necessary vest in the occupier
a prescriptive title to the ownership of the property. In
order to
create a prescriptive title, such occupation must be a user adverse
to the true owner and not occupation by virtue of
some contract or
legal relationship such as lease or usufruct which recognises the
ownership of another.’
The
person exercising the use must do so with the intention to
appropriate to himself or herself a servitude, and, therefore, the
intention to act adversely to the owners’ rights on the part of
the alleged acquirer must be established.
[38]
One of the requisites of prescriptive prescription is that the user
must have taken place without consent because by law there
can be no
prescription unless there has been adverse user. If there was consent
there must be no prescription. See
Malan
case at 566, 571.
[39]
In the present case, the onus is on the applicant to show that his
possession or user and that of his predecessor in title
was
nec
vi, nec clam and nec precario
. In
Bisschop
case
at 9C-E, the court held that a claimant 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. In the present case, it is
common cause between the parties that the applicant and
his
predecessor in tittle used the servitudal right of way peacefully and
openly. At issue, is whether they did so as of right
(
nec
precario
), as if they were owners thereof.
[40]
The respondents deny that the applicant and his predecessor in title
used the driveway / lane as if they were owners thereof
and state
that NN had since the erection of the block of flats been exercising
control over the access to the back of Erf [..]52
via Erf [..]53
and that the applicant and his father had the use of the driveway
with the consent of NN.
[41]
According to the second respondent NN managed to control an access
onto Erf [..]52 via Erf [..]53 by erecting gates on the
driveway so
to be able to block an access thereto. The gates were always locked
and the keys to the gates were kept by NN. This
according to NN in
“DN8”, started happening some decades ago. The second
respondent states that NN had administered
the immovable properties
of the estate of Vengadalam and Lyamah meticulously and kept a diary
in which he made entries on daily
basis of any event that had taken
place with regard to an estate. She avers that the applicant’s
father who was the owner
of the flats on Erf [..]52 was obliged to
pay certain sums of money to NN as a consideration for the permission
to use the drive
way to park the vehicles at the rear of Erf [..]52.
In the second respondent’s version this is also evident from
the entries
her late brother, NN had made in August 1993.
‘
Brother gave a park money half
from August 1992 – July 1993 R772 plus monthly instalments.’
[42]
The other recording is to the effect that ‘Adam told several
people not to urinate … lock gate please’,
Adam an
employee of NN, installed the gates including the pedestrian gate
plus antitheft and a bracket razor coil. The recording
of August 2008
reads, ‘Driveway closed. No one to use.’ These are
important recordings necessary for the determination
of an issue
between the parties. According to the second respondent it is
apparent from the above that her brother, NN, had at
all times
objected to the free use of the driveway by the applicant and his
father and recorded this in his diary.
[43]
In his Founding Affidavit the application makes no mention of his
father as having a sole responsibility to control and administer
the
affairs of the estate late of Vengadalam, since the death of his
father Vengadalam, on 13 January 1966. However, he mentions
for the
first time in his Replying Affidavit that his father had since the
death of Vengadalam in 1966 until his passing away in
1999 been
managing the affairs of Vengedalam’s joint estate. NN was
virtually under the control and supervision of the applicant’s
father assisting with the collection of rentals and some other
related administrative activities. It was only after the death of
the
applicant’s father NN stepped into his shoes as the
de facto
manager of the Vengadalam’s estate. According to the applicant,
his father, NS, was the last surviving executor testamentary.
This
could not be true since it is not in dispute that NN was one of the
four co-executors of Vengadalam’s estate appointed
by the
latter in his last will, “SP5”. Further, the
applicant’s claim must stand or fall on his founding
affidavit.
[44]
It is highly improbable and far-fetched that NN who had been duly
appointed co-executor of the joint estate of Vengadalam and
endowed
with same power as his co-executors would virtually become
subservient to the applicant’s father, taking instructions
from
and reporting to him in the carrying out of certain administrative
tasks. It does not appear from the applicant`s Founding
Affidavit as
to under what circumstances his father assumed a sole responsibility
to control and manage the estate of Vengadalam.
In the same breath,
the applicant says that Vengadalam had made no mention of his
intention that NN should have anything to do
with the control and
management of his properties, following his (Vengadalam’s)
death. According to the applicant if NN were
to be involved, he must
have been under the authority and supervision of his father, NS, as
the person appointed in terms of the
will to exercise control and
management of those properties. Whereas in his founding affidavit the
applicant states this as a fact
and the true position that NN was
only subservient to NS. This demonstrates the lack of tangible
evidence as to his father’s
sole responsibility to control and
manage the estate properties of Vengadalam, on the part of the
applicant. His claim in
this regard appears to be purely based
upon conjecture.
[45]
The applicant alleges in his Replying Affidavit that Vengadalam in
his last will and testament had stated that if NP could
not undertake
his office due to his commitments as headmaster then only NS, his
father, should be responsible for the task, given
to both of them in
the will. Needless, to say that the applicant`s version in this
regard is not only false but also misleading,
for Vengadalam did not
say this in his affidavit at all. What Vengadalam had said in
his will was that if his son, NP, as
a head master at a government
school ‘may not be able to devote the whole of his time to
control and manage the affairs of
his Estate he shall be relieved of
his duty as far as possible….’ The probabilities are
that it was at that stage
NN assumed the responsibility of a
co-executor controlling and managing the immovable properties of the
joint estate.
[46]
On the applicant’s version that his father assumed the sole
responsibility to control and manage the affairs of the joint
estate
and that NN was there only to take instructions from and reporting to
his father in the performance of certain administrative
tasks, it
would mean that no one would prevent his father, NS, from using the
driveway across Erf 24653 onto Erf [..]52. By law
there can be no
prescription unless there has been an adverse user. If there was no
one to prevent the using of the driveway/lane
by the applicants
father, for the period from 1969 to 1999 when he passed away, there
could be no right acquired by prescription.
See also
Malan’s
case at 571. Moreso, according to
nulli res sua servit
principle an owner cannot have a servitude over his or her own land.
See Erlox Properties (Pty) Ltd v Registrar of Deeds
1992(1) SA 879
(A) at 887 F – J.
[47]
The applicant computes the uninterrupted period of thirty (30) years
as from 1969 and it is for that reason he avers that it
is the
Prescription Act 68 of 1969
which finds application in this matter
(paragraph 13.2 of the applicant`s Founding Affidavit). This
seriously contradicts what
he says in paragraph 13 of his Founding
Affidavit that he and his father used the lane openly as if they were
owners thereof for
an uninterrupted period of over 30 years, in fact
since 1960. In order to demonstrate that this has not been an
oversight or due
to a mistake on his part in paragraph 15.1 of his
Founding Affidavit the applicant alleges that he has accordingly
complied with
the provisions of the
Prescription Act 68 of 1969
.
[48]
The second respondent avers that she has personal knowledge of the
fact that NN exercised control over access to Erf [..]52
via the
driveway since the time of the erection of the block of flats on Erf
[..]52 in 1960. The applicant’s predecessor
in title was
according to the second respondent obliged to pay certain sums of
money to NN as a consideration to use the driveway
to park vehicles
at the rear of Erf [..]52.
[49]
According to the applicant his father erected the block of flats
during 1960. However, he says the prescription period started
running
from 1 December 1970, the day on which the current
Prescription Act
came
into operation. He does not proffer any explanation as to
what the position was in the period between 1960 and 30 November
1970
with regard to an access to Erf [..]52. Regard should also be
had to the fact that in the period between 1960 and 13
January 1966
the registered owner of the property in question was still alive.
[50]
Mr Roberts for the respondents has argued that when NN installed an
access control gate during 2008, the running of the prescription
was
thereby interrupted. I do not find any substance in this argument
since from 1970 to 2008 is 38 years. By that time the servitudal
right of way could have already accrued to the applicant. On the
alternative, the respondents aver that the prescription period
was
interrupted in August 1993 when the applicant’s father paid
certain sums of money to NN as a consideration for the use
of the
right of way or parking the vehicles at the rear of the property.
[51]
According to the applicant the “Car Park Money” referred
to in NN’s diary entry relates to rental his father
was the
collecting from the tenants of Erf [..]53, which NN would receive
from him and deposit it into the estate’s bank
account.
The respondents have not been challenged when they say Erf [..]53 was
their parental home and that NN occupied that
property until he died
on 30 March 2012. It is not in dispute that the applicant and
his father used the driveway in order
to park the vehicles at the
back of Erf [..]52. The description NN gave to the money he had
received from the applicant’s
father is more consistent with
the version that the applicant’s father paid this money for the
use of the driveway. The second
respondent’s version in this
regard is more probable and plausible as compared to that of the
applicant. The probabilities,
therefor, are that the applicant’s
father had paid money for that purpose and in which event such action
on the part of the
applicant’s father had an effect of
interrupting the prescription period in respect of the use of the
driveway, if it was
at the time running.
[52]
An access via Erf [..]53 to the rear of the black of flats on Erf
[..]52 was according to the respondents controlled. Gates
were
erected to block access across Erf [..]53 to Erf [..]52. In order to
ensure such control NN locked the gates and kept the
keys in his
possession. The version of the applicant is that the gates were put
up as a security measure as the property administrators
had
experienced the problem of vagrants entering the property through the
driveway/lane, urinating and stealing copper wire on
the property
premises. The erection of gates and the locking thereof had according
to the applicant happened with his approval
and assistance. However,
there are conflicting versions by the applicant as to when the gates
were first erected and by whom.
[53]
In his Founding Affidavit the applicant says that his uncle, NN, put
a gate for security reasons at the entrance of Erf [..]53,
533 Church
Street, during 2010, and provided him (the applicant) with a remote
control and pedestrian key (para 10.4). This is
suggestive of the
fact that the controlled access gate was first installed in 2010.
Whereas in his Replying Affidavit the applicant
says that from 1964
to 1999 his father was controlling access to the lane (para 27.2). He
then adds that his father installed the
driveway gate long before his
death in 1999 (para37.1). The conflicting assertions by the
applicant, leave a question in the applicant’s
version as to
who first installed the access gate, when and who exercised control
over the access to Erf [..]53, since 1960.
[54]
In his Founding Affidavit the applicant does not disclose that on 10
September 2009 through his attorneys he caused a letter
(“DN7”)
to be addressed to NN demanding that the latter should remove the
gate, the building material and any obstruction
on the driveway. In
“DN7” dated 10 September 2009 the applicant states that
NN had installed a gate and dumped building
material on the lane and
that he (NN) was thereby obstructing his (applicant’s) use of
his servitude. The applicant then
demanded that NN should remove the
gates, building material and any of the obstruction within 48 hours,
failing which the applicant
would file an urgent application to the
High Court for an order compelling NN to do so. However, NN refused
to remove the gate
and the building material from the driveway with
no legal consequence. That NN should remove a gate is an implied
assertion by
the applicant that it was NN who had installed it,
without the concurrence of the applicant and his predecessor in
title. It can,
therefore, reasonably be inferred from the applicant`s
non-disclosure of “DN7” that the applicant was concealing
the
fact that NN had independently installed the gate and that he had
been exercising control over an access to the driveway for decades.
[55]
Once again, the applicant has failed in his Founding Affidavit to
disclose NN’s reply (“DN8”) dated 16 September
2009
to ‘DN7” in which he (NN) through his attorneys avers
that the applicant acquired access to Erf [..]52 via Erf
[..]53 with
his consent. Further, that such access was periodical and that as
such it could not establish a real right in favour
of the applicant.
NN added that the applicant’s right of access to the driveway
was not adverse to his (NN’s) rights.
Apart from demonstrating
that the applicant knew that genuine disputes of fact would arise in
this matter, such non-disclosure
by the applicant shows that the
applicant has no legitimate claim to the servitudal right of way in
question.
[56]
With regard to “DN7” the applicant denies that he
instructed his attorneys that NN installed a gate against his
wishes.
The gate was installed by consent between the applicant and NN.
According to the applicant Mr Morgan, his attorney, misconstrued
his
instructions to him. The applicant states that his instructions to
Morgan were not that NN should remove the gate but the building
material rubble, obstructing the lane. NN had caused the building
rubble to be placed on the lane and that he thereby obstructed
the
traffic. However, the applicant does not proffer any
explanation as to how it came about that Mr Morgan, his attorney,
misconstrued his instructions to him.
[57]
The applicant denies obtaining from NN permission to use the right of
way but he admits requesting NN for the registration
of the existence
of the servitude over the lane against the title deeds of the estate
property. Such request for the registration
of the existence of
the servitude is, in my view, indicative of the fact that the
applicant was using the driveway with the consent
of NN.
[58]
The applicant states that the roller gate was installed by consent
between him and NN in 2007 and that he, NN, supplied him
with his own
set of remote control device. The applicant goes onto state that when
the gate motor ceased working in 2009 he appealed
to NN to have it
repaired since the applicant’s son who was an invalid could not
enter on Erf [..]52 via the lane. In the
condition in which the
applicant’s son was, he could not alight from the vehicle and
open and close the gate manually, as
the remote was no longer
working. However, NN did not accede to the applicant’s request
and he simply allowed the matter
to lie unattended to. It stands to
reason that had the applicant and his predecessor been exercising
control over the driveway
and had installed the control gates for
that purpose, there could be no reason for the applicant to approach
NN when the gate motor
ceased to operate and when he wanted to have
the building material rubble removed from the driveway. He would have
attended to
all this by himself.
Conclusion
[59]
The nature and extent of the evidence which has been adduced in this
case, seems to be more consistent with the conclusion
that the user,
by the applicant and his predecessor in title was not and has not
been adverse to NN, as the representative of the
true owner of the
property in question. As a consequence, such user could not have
established a real right of servitude in favour
of the applicant and
his predecessor in title. It would not be that all the people that
used the driveway namely; the applicant
and his predecessor in title,
the tenants of the block of flats and the Msunduzi Municipality had
each free and independent use
of the driveway without the consent or
involvement of either Vengadalam or NN. In the premises, I am not
satisfied that the applicant
has discharged the onus resting on him
to prove that he is entitled to succeed on his claim.
Order
[60]
In the result, the application is dismissed with costs and such costs
to include costs consequent upon the employment of senior
counsel.
Date
reserved:
1 December 2016
Date
delivered:
16 March
2017
For
Applicant:
Adv Ender
Instructed
by:
Carlos Miranda Attorneys
Ref: Mr Miranda
For
Respondent:
Adv Roberts SC
Instructed
by:
Messrs. Sangham Incorporated
Ref: RC/ZK/P1277