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[2018] ZASCA 158
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Community of Grootkraal v Botha NO and Others (1219/2017) [2018] ZASCA 158; 2019 (2) SA 128 (SCA) (28 November 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 1219/2017
In
the matter between:
THE
COMMUNITY OF
GROOTKRAAL FIRST
APPELLANT
TRUI
KIEWIETS SECOND
APPELLANT
KATRINA
MEI THIRD
APPELLANT
and
JACOBUS
DU PLESSIS BOTHA
NO FIRST
RESPONDENT
ESTELLE
BOTHA
NO SECOND
RESPONDENT
GERHARD
BOTHA
NO THIRD
RESPONDENT
(In
their capacities as Trustees for the time being
of
the Kobot Business Trust (IT969/2009))
REGISTRAR
OF DEEDS,
CAPE
TOWN FOURTH
RESPONDENT
Neutral
citation:
Community of Grootkraal v
Kobot Business Trust
(1219/2017)
[2018]
ZASCA 158
(28 November 2018)
Coram:
Lewis, Wallis, Swain, Mathopo and Mocumie JJA
Heard
:
5 NOVEMBER 2018
Delivered
:
28 NOVEMBER 2018
Summary:
Public servitude of user for religious,
school and related community activities – acquisition –
immemorial user (
vetustas
)
– principles – evidence – terms of order –
ministerial consent in terms of s 6A(1) of the Subdivision
of
Agricultural Land Act 70 of 1970.
ORDER
On
appeal from:
Western Cape Division of
the High Court (Baartman J sitting as court of first instance):
1
The
appeal succeeds with costs, such costs to include those consequent
upon the employment of two counsel.
2
Paragraph
(a)(ii) of the order of the High Court is set aside and replaced by
the following:
(a)
It is declared that the First Appellant,
the Community of Grootkraal, being all the families and individuals
who live and work on
farms in the valley which is known as the
Grootkraal-Kombuys area, as a portion of the public, has the right,
in the form of a
public servitude, to use and occupy the property
demarcated by the points BCDEFGHJKL and a line drawn parallel to AM
and at a distance
of 2 metres from the rear corner of the ‘Hoof
skoolgebou’ nearest to the line AB on the survey diagram,
Annexure “A1”
to the affidavit of Trui Kiewits at page
141 of the record, for the purposes of a Christian church and any
related community activities,
including the conduct of a school.
(b)
Subject to the consent to registration of
the Minister of Agriculture in terms of section 6A(1) of the
Subdivision of Agricultural
Land Act 70 of 1970 first being had and
obtained, the Ninth Respondent is directed to register a public
servitude in the terms
set out in para (a) above over the property
described as Remainder of Portion 40 (Portion of Portion 2) of the
farm De Kombuys
No 28, in the Municipality and District of
Oudtshoorn, Province Western Cape, in extent 117,6629 (One Hundred
and Seventeen comma
Six Six Two Nine ) hectares held by Deed of
Transfer T5665/2010.
(c) The Kobot Business Trust (IT 969/2009) as
represented herein by its trustees, the First to Third Respondents,
is to pay the
costs of the counter application, such costs to include
those consequent upon the employment of two counsel, where two
counsel
were employed.
JUDGMENT
Wallis
JA (Lewis, Swain, Mathopo and Mocumie JJA concurring)
[1]
Some 25 kilometres
north of Oudtshoorn, beyond the turnoff to the Cango Caves, and
immediately adjacent to the R328, is a nondescript
building with a
badge on the wall proclaiming it to be the Grootkraal UCC
[1]
Primary School. Apart from the school building, there is one separate
classroom, some outbuildings, a children’s outdoor
play area
and a small, cultivated plot. The whole is surrounded by a wire fence
(the property). The school is a public school in
terms of Chapter 3
of the South African Schools Act 84 of 1996 (the Schools Act).
The property on which it is situated is
a small portion of the farm
Grootkraal, which extends from the road up into the foothills of the
Swartberg. The Kobot Business
Trust (the Trust) represented by its
trustees, the first to third respondents, owns the farm
Grootkraal,
[2]
having purchased it from the estate of the late J W H van der Veen,
who will feature later in the narrative of events.
[2]
Although the nature of the dispute requires
us to explore the history of missionary activity in the area from the
early part of
the nineteenth century, its immediate roots lie in an
endeavour by the Department of Education, Western Cape (the
Department) to
close the school by merging it with a school at
Voorbedacht. The school and its governing body opposed that decision
and obtained
an interdict prohibiting the closure or relocation of
the school without proper consultation with relevant stakeholders.
Five months
later the Trust brought proceedings against the
Department, the school and the school governing body seeking the
eviction of the
school from the property.
[3]
The second and third appellants, Ms Trui
Kiewits and Ms Katrina Tiemie (née Mei), acting for themselves
and on behalf of
the first appellant, described as the Community of
Grootkraal (the Community), intervened in those proceedings, claiming
on several
grounds that the Community and its members held rights to
use the school property and that this precluded the eviction of the
school.
They lodged a counterclaim seeking an order that a public
servitude be registered over Grootkraal that would record and protect
those rights. Baartman J heard the Trust’s application for
eviction and the counterclaim. She postponed her decision on the
former, but dismissed the latter. This appeal is with her leave and
concerns only the Community’s claim to exercise public
rights
over the property.
The
Community’s claim
[4]
The Community is not a formal body, nor is
it capable of exact definition. It is said to consist of those
individuals who have historic
and family ties with the Grootkraal
area, where they and their forebears have lived and worked for many
generations. By way of
example, Ms Kiewits and Ms Tiemie are the
fifth generation of their families to have lived and worked in the
Grootkraal area. Other
deponents claimed a similarly lengthy
connection with the area and the property, and one deponent said that
she was the ninth generation
to have lived there. They and their
parents and children attended the school and they have longstanding
connections with the church
that has existed on the property, so they
say, for nearly 200 years. The members of this Community are largely
drawn from the Coloured
sector of the population and are historically
disadvantaged. They include farmworkers, artisans, domestic workers
at local resorts
and people working in various capacities at the
Cango Caves. Although people come and go from the area, there is
obviously a core
of people having close family and working
relationships with one another and a connection to both the school
and the church on
the property. Without further definition of who
constitutes the Community I will refer to it as such in what follows.
Accepting
that there is such a Community there is no challenge to Ms
Kiewits and Ms Tiemie’s right to represent it.
[5]
The Community contended that as a result of
missionary activity a church was established on the property in the
early part of the
nineteenth century. Since then and up until the
present day, they and their forebears have, as of right, used the
property for
church and church related purposes. In 1930 or 1931 this
use was extended to the conduct of a school in the church building.
Apart
from baptisms, weddings and funeral services, various other
community activities, such as, bazaars, song festivals, dominoes
tournaments,
and other celebrations linked to the church and school
have taken place there. The Community said all of this gave rise to a
public
right, by way of servitude, vested in the Community to
continue to use the property for those purposes in perpetuity.
[6]
The Community’s claim was summarised
in the following heartfelt passage from the heads of argument:
‘
The Appellants’ case is:
They say that justice demands there will be some way in which the law
protects the use and occupation
rights of a community such as they –
impoverished black farm workers who managed for longer than 200
years, during the course
of Apartheid, in harmony with a succession
of white land owners, to constitute their community around their use
and occupation
of a piece of land – against a land owner’s
desire to evict them.’
Three
legal arguments were advanced in the heads of argument in support of
this plea. The first was that a public servitude of user
for
religious, school and related community purposes existed in favour of
the Community and that its lawful existence was confirmed
by the
principles of
vetustas
.
The second was that a public servitude in the same terms had been
created by prescription in terms of the
Prescription Act 68 of 1969
.
The third was that the trust purchased the property in 2009 from the
Estate of the late J W H van der Veen on terms that gave
express
recognition to the Community’s rights, and that the doctrine of
notice applied to preclude it from ignoring those
rights and evicting
the school from the property.
[7]
Two of these arguments
were not pursued before us. Chapter II of the 1969
Prescription Act
deals
with the acquisition of servitudes by prescription.
Section 9
provides that Chapter II of that Act does not apply to public
servitudes. Counsel accepted that this was an insuperable bar to
the
argument based on prescription. Had it not, the attempt, by way of a
development of the common law, to overcome the bar posed
by the
requirements of
s 6
of the
Prescription Act, also
faced
insuperable obstacles.
[3]
As for the contention based on notice, there was a dispute of fact
that could not be resolved in favour of the Community. In any
event,
the right for which the appellants were contending was not a personal
right granted by any of the Trust’s predecessors
in title, of
which the Trust had notice, which is the basis for the invocation of
the doctrine of notice.
[4]
The appellants’ claim must therefore stand or fall by the
contention that
vetustas
is the route through which the Community claimed the rights for which
they contended.
Vetustas
[8]
Vetustas
is
not a subject that frequently engages the attention of our courts.
[5]
Its origins are to be found in passages in the
Digest
.
In
De Beer v Van der
Merwe
,
[6]
Juta JA explained that the doctrine relates to a right that has been
exercised against another person and has been in existence
for so
long – since time immemorial – that no one can tell when,
and therefore how, it arose. It is then assumed that
the right arose
lawfully, subject to the other party being able to rebut that
presumption by showing that it had an unlawful origin.
He quoted
Goudsmit as saying that:
[7]
‘
When any state of things has
endured so long in time that its origin dated back to a period to
which the memory of man did not extend
there was a legal presumption
that such origin had been legitimate and the parties were dispensed
from furnishing proof that it
was so.’
[9]
Vetustas
may
appear similar to prescription, but the two operate in different
ways. Prescription depends upon an act adverse to the interests
of
the owner and lacking legal authority.
Vetustas
presumes a lawful act, but that
presumption can be rebutted by proof of unlawfulness. Prescription
creates rights arising from conduct
by the claimant and their
predecessors in title adverse to and infringing upon the rights of
the other party. It creates a right
and not a rebuttable presumption.
By contrast,
vetustas
does
not create a right, but dispenses with the need to prove its origin.
Once the party relying on it has proved the immemorial
existence of
the state of affairs that it is desired to maintain, it is presumed
that such state of affairs was created in a lawful
way. The onus then
shifts to the other party to prove that it lacked a lawful origin.
[10]
In the light of some of the Trust’s
submissions, it is necessary to say something about the notion of
immemorial usage. The
heads of argument contained the following
proposition:
‘
In order to prove an
immemorial user it is not sufficient merely to show that no one can
remember the
exact date
or even the exact year when the right was first exercised, or to show
that there are no people living who can remember it. It must
be
proved that those people who might be
expected
to know of the origin of the right
, if
it had been within the memory of living man,
had
themselves no knowledge of its origin and did not hear from the
generation preceding them that it had previously existed
.’
The
emphasis by way of underlining was in the heads of argument and it
was said that this was a ‘clear exposition of the law’.
[11]
There are several
difficulties with these contentions. Firstly, the quoted passage was
attributed to the judgment in
Berg
v Gossyn (2)
.
[8]
That was incorrect because it comes from the judgment in
Langebaan
Ratepayers
.
[9]
Secondly, it is not a statement of law by the judge in that case, but
a summary of the argument of the unsuccessful respondent’s
counsel. Thirdly, the judge concluded that the submission was
‘misplaced’ and that, as a summary of the reasoning in
Berg v Gossyn (2)
,
it was incorrect.
[10]
Fourthly, it is inconsistent with earlier authority.
[12]
In
De
Beer v Van der Merwe
,
Juta JA described the requirement for proof of
vetustas
as being immemorial
user or exercise of the alleged right. In his judgment Kotzé
JA dealt with this in slightly more detail
saying:
[11]
‘
By
vetustas
is understood a condition of things beyond living memory ---
immemorial usage. If it can be shown, or does appear how and when
a
particular work or construction was originally made, the doctrine of
vetustas
does not apply. … If, therefore, the facts of a given case
show that the state of things in question is within living memory,
that is to say, if there be
probatio
or
memoria in contrarium
,
the doctrine of
vetustas
does not apply.’
In
other words the origin of the right being claimed must be beyond
proof (
probatio
)
or contrary memory or recollection (
memoria
in contrarium
).
[13]
There is an
illuminating discussion of the meaning of immemorial usage by
Watermeyer J in
Divisional
Council of Fraserburg v Van Wyk
.
[12]
He pointed out that passages in some judgments to the effect that
once it can be shown when the exercise of rights began there
could
not be an immemorial usage of such rights, were not entirely
consistent with the decisions in those cases. If taken to their
literal extreme these statements would mean that immemorial usage
could never be proved in South Africa, because one could always
establish that there was an earlier date when the usage in question
did not exist. Something less must suffice.
[14]
Watermeyer J concluded
that what is required is proof of the existence, and therefore the
exercise, of the right during the memory
of the current generation,
‘which was not restricted to that which persons themselves
remembered but extended to things stated
to the existing generation
by that which had preceded it’. Differently expressed, there
must be proof that the right has
existed for a very long time and
that there is no certain knowledge or information of a different
condition or practice having
existed. The witnesses should state that
in their own time and that of their forebears the practice existed
and nothing was heard
or reported to the contrary.
[13]
In homely language they would say it was ever thus.
[15]
In the face of evidence
to that effect it is not sufficient for the opponent to identify the
date or period when the custom originated.
The onus is then to prove
that its origin was unlawful. The reason is simple. Every custom or
practice must have commenced at some
time. If identifying a prior
time when it did not exist could defeat it, the point of the
presumption would be lost. One can always
say of a practice that
evolved in the seventeenth century, that it did not exist in the
sixteenth century, but that is beside the
point. It is not the date
upon which it arose that is relevant, but that it has existed since
time immemorial and its origins are
unknown. There is then a
presumption that the right came into existence in some lawful
fashion.
[14]
[16]
It follows that the Community’s claim
cannot be defeated simply by proof that the rights it claims to enjoy
came into existence
at some indeterminate time between 1800 and 1850.
The expression ‘beyond living memory’ is concerned less
with the
precise date when the right arose, than with the
circumstances in which it came into existence. Both when it arose and
its origins,
that is, agreement, permission, donation or its
constitution by some other means, must be beyond living memory. That
gives rise
to the presumption that its origins were lawful. If it can
be shown when and in what circumstances a right was first exercised
these questions do not arise, as the issue then will be the nature of
the right so created and whether it has thereafter been lawfully
terminated.
[17]
There is some debate
among academics whether
vetustas
may be relevant to
proof of the existence of private, as opposed to public,
servitudes.
[15]
It is unnecessary to become embroiled in this debate, as the
Community’s claim is for a public servitude. Nor is it
necessary
to determine whether these are properly described as
servitudes or whether they should more correctly be classified as a
form of
public law right.
[16]
Referring to them as public servitudes is a convenient usage that has
been adopted over many years without creating doctrinal problems.
[17]
[18]
The right being sought
by the Community is novel. Prior cases have dealt with public
servitudes such as rights of way,
[18]
the right to discharge water across a neighbouring property, a
servitude of outspan,
[19]
a trekpath,
[20]
a commonage, or a right of recreation.
[21]
But there is no closed list of servitudes and it has been said that
their number is virtually unlimited, subject to fulfilment
of the
basic requirements for a servitude’s existence.
[22]
There is no reason why the entitlement of the public, or a defined
section of the public, to use someone’s property in a
particular way or for a particular purpose cannot give rise to a
public servitude the existence of which may be established by
proof
of immemorial user.
[23]
Professor Van der Walt said of public servitudes that they ‘grant
use entitlements with regard to specified private land
to the general
public at large or to a particular section of the public’
[24]
and that is precisely what the Community is seeking. There is little
difference in principle between a servitude of that character
and a
right of commonage, or right of access to land for recreational
purposes.
[19]
I conclude that there is no legal bar to
the Community’s contention that it is entitled to the
registration of a public servitude,
provided it can establish a right
to use, for religious and educational purposes, a small and defined
portion of the larger property,
that is Grootkraal, by invoking the
presumption of lawful creation afforded by the principles of
vetustas
.
Whether it can do so depends upon the evidence of immemorial user,
which in turn depends on the history of Grootkraal and the
circumstances in which the property came to be used for religious
purposes.
[20]
Grootkraal’s
history is bound up with the history of missionary activity in this
part of South Africa, to which I now turn.
The parties dealt with
this on a relatively cursory basis, relying principally on memories
of what people had been told about the
history, with no endeavour
being made to consult or refer to readily available and reliable
sources of information. In the result
some of the assertions made
were more the product of legal drafting than historical fact. The
relevant developments could have
been found, with very little
research effort, in the annual Missionary Register published by the
Missionary Society, which contained
annual reports, usually from the
missionaries stationed at the various mission stations.
[25]
In addition a detailed history of the Congregational Union of South
Africa was prepared in 1940 by Geo P Ferguson from church records
and
records of the LMS.
[26]
[21]
Much of what follows is
drawn from these sources and has been used to complete and correct
the picture drawn by the parties in their
affidavits. The court may
take judicial notice of such material when it is readily available
and reliable, however it may come
to the court’s attention.
[27]
The emphasis must be on the material’s availability and
reliability, recognising that in our technological era information
that could in the past have been unearthed only after lengthy
investigation, may now be readily available from reliable sources
in
digitised form. Where necessary, in the interests of procedural
fairness, the parties must be apprised of the existence of such
material and its relevance to the case in hand to enable them to deal
with it either at a factual level, if it is disputed, or
in their
submissions. In the present case the problems with the evidence and a
summary of its impact was put to counsel in the
course of argument
and not challenged.
The
mission and church history
[22]
The London Missionary
Society (LMS) was founded in 1795
[28]
as an inter-denominational missionary organisation, with strong
Congregational roots. It sent its first missionaries to the Cape
in
1799, when four missionaries arrived at Cape Town. Their activities
expanded rapidly and by 1816 they had established 13 mission
stations
in various parts of the Cape Colony and beyond its borders across the
Orange River.
[29]
The Hoogekraal mission station, established on land now falling in
the town of George in the Western Cape, was one of the earliest
mission stations, established in 1813, which coincides with the
arrival of the Rev Charles Pacalt.
[30]
After his death the mission station was renamed Pacaltsdorp.
[31]
[23]
The mission at
Pacaltsdorp operated as the ‘mother’ church for further
mission stations, referred to as ‘outstations’,
situated
inland, in the vicinity of modern day Oudtshoorn. The latter was
originally part of the magisterial district of George
and was only
laid out as a church farm in 1847 on the farm Hartbeesfontein. The
first, and principal, outstation was at Dysselsdorp,
[32]
which Ferguson describes
[33]
as ‘the oldest church of the Little Karroo’ covering the
area between the Outeniqua Mountains and the whole of the
Zwartbergen, an area that included Grootkraal. The earliest reference
to the establishment of Dysselsdorp is in 1836,
[34]
but it acquired its own missionary in 1838, when the Rev John Melvill
established an Institution there.
[35]
[24]
It is apparent from the
various reports of the mission work at Dysselsdorp that it was not
confined to that place. In 1841, Melvill
was ‘itinerating among
the farms in his neighbourhood’.
[36]
In 1843 it was said that few people live at the mission station and
that they ‘reside dispersedly among the farmers’.
Some
lived at a distance of 30 miles from the station and it embraced a
circuit of 200 miles. Many congregants spent two or three
days on the
road in order to attend public worship.
[37]
In 1844 it was recorded that the congregation were ‘scattered
among the different farms, and have to come great distances
to
Worship’, but that some of them conducted ‘Social
Worship’ among their fellow farmworkers in the evenings.
[38]
[25]
The Register for
1845
[39]
recorded that although few people lived on the Station most ‘come
from great distances to attend Public Worship on the Sabbath.
The
influence of the Missionary extends to at least 1400 or 1500 persons
of a variety of races and complexions. They reside among
the Dutch
farmers either as hired servants, or holding land by a kind of feudal
tenure, rendering a certain amount of service for
permission to
cultivate a part for their own support.’
[26]
In 1846, for the first
time, the Missionary Register reflected that the mission work at
Dysselsdorp had extended to another specific
place, with a report
that an outstation had been established at Matje’s Drift, about
18 miles from Dysselsdorp.
[40]
In 1847 the Rev Melvill moved to Matje’s Drift and was in the
process of finishing a small chapel there.
[41]
In 1850 it was reported that this chapel was complete and another was
in the course of erection in the ‘new village of Oudshorn,
where the population is larger than in any other part of the
District.’ Both Matje’s Drift and Oudtshoorn were
supplied
with an assistant.
[42]
The 1851 report reflected that a ‘large and substantial chapel’
was on the eve of completion in ‘Oudtsham’.
[43]
[27]
Lastly, in this
traverse of official reports from the LMS, in 1855 it was recorded
that:
[44]
‘
The labours of the Missionary
have been distributed among three Congregations collected at
Dysalsdorp, Oudtshoorn and Matjes River.
At Oudtshoorn, the most
important of the three stations, Mr Anderson preaches every alternate
Sunday to 350 or 400 people.’
In
the same year it was recorded that the Missionary, Mr Anderson, and
some of the congregation had purchased a farm at Matje’s
River,
which it was thought would be a good base for further missionary
endeavour.
[28]
Two significant points emerge from this.
The first is that, after Dysselsdorp was established in 1838 as a
separate mission from
Pacaltsdorp, its missionary efforts were spread
over a wide surrounding area in which Grootkraal fell. The second is
that Grootkraal
itself is not mentioned in any of the reports as a
separate mission station, or even as an outstation of either
Pacaltsdorp or
Dysselsdorp. Accordingly, any regular religious
activity on the property must have been on a limited scale. The
suggestion, in
the affidavits of both the Trust and Ms Kiewits, that
the LMS erected a church on the property in the 1820’s seems
improbable.
As already noted the annual Missionary Registers
contained reports from all mission stations falling under the aegis
of the LMS
and it is unlikely that their reports would have failed to
mention such a church, when they recorded the erection of small
chapels
on other outstations. Building a church of any size would
have involved the disbursement of funds from the LMS budget. However,
the construction of a rudimentary building for the Community to
conduct worship cannot be excluded. In the result there do not
appear
to be any records that would enable the origins of the Grootkraal
church, both as a physical entity and as a congregation,
to be
identified. Similarly there are no means of establishing the nature
of any arrangements by which the property came to be
used for the
purposes of the church.
[29]
Between 1848 and 1850
the LMS encouraged churches that it regarded as financially viable
and capable of becoming self-supporting
to become independent of the
LMS. This was not a breakaway movement as there remained links
between the LMS and the independent
churches, but merely reflected
that they had become self-supporting. According to Ferguson,
[45]
the first three churches took this step in 1855. These were
Dysselsdorp, Oudtshoorn and George.
[46]
It appears therefore that Dysselsdorp and Oudtshoorn were by now
regarded as largely separate from one another, although they shared
a
minister, the Rev B E Anderson. It seems reasonably
certain that calling these churches ‘Independent’
or
“Independente’ arose around this time. The suggestion in
the affidavits that this separation from the LMS occurred
in 1838
cannot be correct and that date must refer to something else.
[30]
Dysselsdorp and
Oudtshoorn formally separated in 1862, when the Rev Anderson divided
the parish and took as his responsibility Oudtshoorn
and its
outstation at Matjes River.
[47]
This would have included Grootkraal, but there is still no
documentary evidence concerning the religious activities on the
property.
In 1859 a number of independent churches, not restricted to
those established as a result of the activities of the LMS, formed
‘The South African Union of Voluntary Churches’, and it
seems likely that the Independent churches at Oudtshoorn and
Dysselsdorp were members of that union.
[48]
It changed its name in 1861 to the Evangelical Voluntary Union of
South Africa.
[31]
In 1877 the
Congregational Union of South Africa (CUSA) was established with a
view to bringing together all Congregational churches
in one fold.
Initially its membership was confined to the Eastern Cape, but in
1883 both Oudtshoorn and Pacaltsdorp joined, and
Dysselsdorp
indicated that it wished to join.
[49]
In 1967 CUSA merged with the Bantu Congregational Church and the LMS
in South Africa to form the United Congregational Church of
South
Africa (UCCSA). The name of the school on the property is plainly
derived from this connection.
[32]
Reconciling this history, derived from
contemporary documentary records of the LMS and from CUSA’s own
records, with the affidavits
of the parties, is not always easy. But
that is to be expected when the Community is relying largely on oral
tradition and folk
memory, while the Trust’s understanding is
based on hearsay from persons similarly relying largely on memory and
tradition.
In dealing with their evidence, and trying to complete the
picture as far as that is possible, it is convenient to start at a
point
where there is a clear reference to Grootkraal and work
backwards until it is no longer possible to peer into the past.
[33]
The first definite
reference to Grootkraal is in the Congregational Year Book of
1901,
[50]
where it appears in a list of Congregational and Mission Churches and
Ministers in, inter alia, the then British Colonies.
[51]
It is shown as an outstation of the Oudtshoorn Congregational Church
that had held 300 sittings (presumably meetings and services)
that
year. Unlike Matjes River and two other churches it was not reflected
as a branch church with separate officers, that is,
church secretary
and deacons. That suggests that it was still a fairly small local
church. Three witnesses confirmed that at all
relevant times
Grootkraal was a congregation attached to the Oudtshoorn
Congregational Church, in other words, an outstation. It
was
reflected as such in a commemorative publication produced on the
150
th
anniversary of that church.
[34]
The Community alleges, and the Trust does
not dispute, that the main building at present on the property was
built by the members
of the community and congregation in the latter
part of the nineteenth century. It was constructed originally as a
church and in
about 1930 adapted for use as a school. Mr Willie
Coetzee, the secretary of the church, said that it was built at a
time
unknown to him, but probably in the last two decades of the
nineteenth century. Mr Japie Coetzee, who was for a long period a
senior
office bearer in the Oudtshoorn Congregational Church, dealt
with the history of the church on behalf of the Trust. He noted this
allegation without disputing it. Coming from people with deep roots
in the Community, going back several generations, this is information
that would have been known to their grandparents and construction
possibly occurred during the lifetime of their great-grandparents.
There is no reason not to accept it.
[35]
A church would not have been built until
there was a sufficient critical mass of people in the Grootkraal
Community wanting a church
building of their own in which to conduct
worship and other church activities. So there must have been a
worshipping community
at that place before the church was built. I
referred earlier to the possibility that there was a rudimentary
church building on
the property at a much earlier date, whilst
discounting the likelihood of it having been built by the LMS. Mr
Botha, the first
respondent, said in his affidavit that ‘there
had at all times been a small Church which had been built during the
early-1800’s
by the London Missionary Society’. He does
not indicate the source of this information. Perhaps reflecting how
inconclusive
the evidence of the parties was in regard to historical
matters, Ms Kiewits denied this. She alleged that the church was
built
‘somewhere during the second half of the nineteenth
century’ by the Independente Church. It seems probable that she
is referring to the more substantial building erected in the late
nineteenth century.
[36]
If there was no church building until the
latter stages of the nineteenth century, then prior to it being built
people must have
conducted their religious activities in homes and
other buildings in the area that were available to them. On special
occasions
and for special services they would have travelled to
Oudtshoorn to join with the congregation there. This is consistent
with the
historical record. One cannot tell how far back this would
have extended, but the church reports cited earlier speak of people
travelling extended distances to worship at Dysselsdorp, often taking
several days to travel there in wagons. If mission activity
of some
sort commenced at Grootkraal in the earlier part of the nineteenth
century it is probable that this included people from
Grootkraal.
[37]
The affidavits on all sides refer to 1838
as a definite commencement date by which there was missionary
activity and a church operating
at Grootkraal. It is well nigh
impossible to reconcile that with the history described above. The
establishment of Dysselsdorp
as an outstation of Pacaltsdorp Mission
only occurred in 1838. The original chapel in Oudtshoorn was built in
about 1849, but there
was religious activity in Oudtshoorn prior to
that date. It is at least possible that the first mission outreach to
the new settlement
was in 1838 and some very basic building was
erected as a place of worship prior to the construction of the
chapel. The probability
is that 1838 was known because it was the
date when Rev Melvill established the Institution at Dysselsdorp, and
all the different
branches of the church in that wider mission field,
including Grootkraal, regard that date as foundational to their
existence.
[38]
In sum, it is not possible to pierce the
veil of history to an earlier date, and the history of the church at
Grootkraal up until
the last couple of decades of the nineteenth
century is obscure. The conclusion must be that at some uncertain
date, between 1820
and the building of the church in the late
nineteenth century, a Christian community was established at
Grootkraal, with connections
possibly to Dyssselsdorp, but definitely
to Oudtshoorn. It is that Community, as part of the wider Grootkraal
community, that has
worshipped and conducted other church activities
on the property ever since. It built the church and over the years it
has associated
itself with various churches in Oudtshoorn, itself
operating as an outstation of these churches.
[39]
The history of ownership of the farm, of
which Grootkraal was a part, throws no more light on the matter. It
was originally called
Kombuis and was Crown land. In 1820 it was let
on perpetual quitrent to Pieter van der Westhuizen. He obviously
sub-divided and
disposed of portion of the property thereafter,
because between 1869 and 1880 the remainder of the farm Kombuis,
which included
Grootkraal, had become fragmented among a number of
families, almost all with the surname Schoeman. In 1883 there was
some consolidation
of these land fragments, but it is impossible to
ascertain, from the title deeds we were shown, which portion included
Grootkraal,
or who owned it. We were not provided with a title deed
showing when it came into the possession of the Van der Veen family.
One
document suggests that the Schoemans and the Van der Veens may
have been related, so it was possibly by inheritance, but we cannot
tell.
[40]
The current
representative of the Van der Veen family is Mr Hans van der Veen. He
deposed to an affidavit saying that he was the
fourth generation of
the family to grow up on Grootkraal, preceded by his father, Mr J W H
van der Veen and his grandfather, Mr
H W J van der Veen. In 1891 one
Herman van der Veen was appointed as the caretaker of the Cango
Caves.
[52]
He in turn appointed a Mr John van Wassenaer as a guide according to
a history provided to us by the Community. That appointment
was made
by the Cape Government, as the management of the caves only passed to
the Oudtshoorn Municipality in 1921.
[53]
It is probable that Herman van der Veen, who is identified as the
owner of Grootkraal, was H W J van der Veen’s father, which
would make him the first of the four generations of Van der Veens on
Grootkraal. When control of the caves passed to the municipality,
it
appointed H W J van der Veen as caretaker and chief guide and Mr van
Wassenaer as his assistant.
[54]
[41]
The guide, Mr van Wassenaer, is referred to
as ‘Oupa’ in a brief extract from a family history
prepared by Mr J W H
van der Veen’s wife, that is, a member of
the third generation of the family. It said that he married
“Stiefouma’
Nita, who played a leading role in
establishing the school in 1930. She subsequently taught there.
According to the history, Stiefouma
Nita was about the same age as Mr
H W J van der Veen’s wife, although she was her step-mother.
The note records that ‘ons
pa’, an ambiguous expression
given that the writer was not born into the Van der Veen family, gave
the land on which the
school was situated for a church (‘vir ʼn
kerk’). That is revealing as it can only relate to the
Grootkraal church
that came to be used also as a school.
[42]
If, within the Van der
Veen family, there were any family recollection of the circumstances
in which the church came to use the
property, other than that the
land was given for a church, one would have expected this to be
communicated to Mr Hans van der Veen.
However, his affidavits say no
more than that when he was growing up on the farm the church (and the
school) was always there and
used by the Community. In the last few
years of his life, his father
[55]
made various unsuccessful attempts to transfer the property for a
very nominal amount to the Oudtshoorn Congregational Church,
with
which Grootkraal had been associated. There is mention in the
affidavits of Mr Esterhuizen and Mr Karel Coetzee of a 99 year
lease
by Mr H W J van der Veen in favour of the Oudtshoorn Congregational
Church, but no document was produced. The evidence was
that Mr van
der Veen did not collect any rental and said that had anything been
paid to him he would have donated it back to the
church.
The
school
[43]
I have not thus far given any attention to
the circumstances in which the school was established. The
documentary evidence shows
that Mrs van Wassenaer (Stiefouma Nita)
was a moving spirit in this and she had the co-operation and blessing
of H W J van der
Veen’s widow (her step-daughter), who had
remarried and was then known as Mrs Smuts. Establishing a school as
an adjunct
to a mission, church or chapel was a feature of much
missionary and church activity at this period and there seems to be
no reason
not to regard the establishment of this school in the
church as anything more than that. There is a telling expression in a
letter
written to Mrs van Wassenaer by the Rev Mullineux, the
minister at the time at the Oudtshoorn Congregational Church, in
which he
expresses gratitude to her and Mr and Mrs Smuts for agreeing
that the church may be used as a school. A similar expression is to
be found in a letter written by Mr H W J van der Veen to the same
church on 10 February 1965. The purpose of the letter was to
secure
that the church reimburse Mr van der Veen for increased municipal
charges arising from the church’s use of the property
for the
purposes of the school. Neither letter suggests that the church
itself required any similar permission or consent. There
is no
reference to the church paying rent for its use of the property. The
letters reinforce the conclusion that the operations
of the school
were seen as an adjunct to the existing activities of the church
already on the property.
[44]
The fact that the school became a
state-aided school and, under the Schools Act, a public school, does
not in my opinion alter the
relationship between church and school.
Such changes are an inevitable consequence of governmental control or
oversight in relation
to education. They cannot as such alter the
circumstances underpinning the school’s establishment.
[45]
Apart from this, it
does not seem to me that the establishment of the school affects the
primary issue in this case, which is whether
the Community acquired a
public right to use the property for the church that they built there
and for such further activities
related to that use as would be
expected to fall within such a grant. The work of a church in a
community may vary from time to
time depending on the needs of the
congregation and the community that it serves. A Sunday School has
long been part of that work
and its extension to primary schooling on
a broader basis is a natural adjunct thereto, frequently encountered
in practice. The
reports by mission stations in The Missionary
Register contain regular references to conventional educational
activities taking
place as part of the mission work.
[56]
[46]
The public right for which the Community contends
could only have come into existence long before the establishment of
the school.
In those circumstances it is to the situation at those
times that we must look in determining this appeal. The Trust did not
argue
that the existence of a right to use the property for religious
purposes would exclude its use for a school. In the circumstances
the
focus needs to be upon its use for those religious purposes.
Immemorial
Usage
[47]
The inevitable conclusion from the history
canvassed above is that the circumstances in which the church
community at Grootkraal
came into being, and obtained the use of the
property for the church and church related purposes, are lost in the
mists of time.
It can safely be concluded that the church existed by
the latter stages of the nineteenth century, when the Community
erected the
church building, but it obviously had its roots at an
earlier time and may go back as far as 1838 or even earlier. It
was
probably always an extension of the mission work at Oudtshoorn,
or possibly Dysselsdorp, and eventually it became an outstation
of
the Oudtshoorn Congregational Church. The Grootkraal church and its
congregation have over the years had a connection with a
variety of
church bodies, starting with the South African Union of Voluntary
Churches, and followed by CUSA, the UCCSA, the Independent
Church
when it broke away from the UCCSA, and now the Grace Church
International. Nonetheless, it is plain that the Grootkraal
church
has always independently walked the path that its adherents have
chosen. It has never submerged its existence in any other
body or
association and throughout it has exercised the right to use the
property for the purpose of its church, and by extension,
its school
and related activities, as of right.
[48]
Other than a reference to the land having
been given to the church, an expression that is itself ambiguous,
there is not the slightest
piece of evidence as to the precise
circumstances in which it came about that the Grootkraal Community
used the property to build
a church and conduct church services and
related activities there. The fact that successive owners of the
property at no stage
stepped in to prevent the church from operating,
or asserted that it was operating unlawfully, is an indication that
this occurred
lawfully.
[49]
In my view this is sufficient to establish
a state of affairs existing from time immemorial. That gives rise to
a presumption that
the right being exercised for all this time has
been exercised lawfully. Did the Trust rebut this presumption by
showing that the
exercise of the right had an unlawful origin? In my
view it did not. In part that was because of its misunderstanding of
the law
relating to
vetustas
.
In part it was because it failed to recognise the difference between
the Community and various entities with which it was from
time to
time associated. That caused it to conflate the Community’s
claims with the legal relationship between the Trust
and the
Department, and the earlier relationship between the Oudtshoorn
Congregational Church and the Van der Veens.
[50]
The failure to understand the principles of
vetustas
can
be seen in the Trust’s response in the answering affidavit to
the claim to a public servitude. It focused almost entirely
on the
position since 1931. It claimed that the property occupied by the
church and school was leased to the Uniting Christian
Church,
(presumably intending the United Congregational Church) Oudtshoorn,
but produced no lease. It went on to claim that from
1931 the church
sub-let the property to the Department for the purposes of a school.
This was factually wrong because the question
of a lease to the
department only arose after the school became a public school, at
which stage it became obligatory for the Department
to conclude a
lease with someone in terms of s14 of the Schools Act. Prior to that
the school was a state-aided school operating
on private property.
Correspondence produced in response to questions posed by the Court
before the hearing of the appeal reflected
that the Department dealt
with the Oudtshoorn Congregational Church over various issues. This
was what one would expect, as the
Grootkraal church was an outstation
of the Oudtshoorn Congregational Church. These letters show that the
Department’s predecessors
regarded the church as the
institution they had to deal with in relation to the property, not
the landowner.
[51]
Mr Botha went on to say that ‘after
the UCC’s rights on the property terminated’ the
Department entered into lease
agreements with Mr van der Veen,
presumably referring to the time when a split in the Oudtshoorn
Congregational Church led the
congregation at Grootkraal to follow
the Independente Church in Oudtshoorn. This ignored the fact that the
church continued without
interruption to operate at Grootkraal.
[52]
These statements were not only largely
incorrect factually, but ignored the fact that
vetustas
is concerned with a state of affairs
that has existed since time immemorial. The primary issue was
therefore whether since time
immemorial the Community had undertaken,
as of right, religious activities on the property and, if so, whether
they did so unlawfully
or by way of a right that could be shown to be
defeasible. There was very little endeavour to address that.
[53]
Mr Botha’s own affidavit purported to
summarise the history, without any reference to historic sources or
the sources of his
information. His explanation made it plain that
church activities had been conducted on the property since time
immemorial and
there was no suggestion that these activities were
conducted unlawfully. He placed the building of the initial church
during the
early 1800s by the LMS. He said that in the mid-1800’s
several churches in the area declared independence from the LMS and
formed the Independente Kerk, which ‘continued in control of
the church buildings erected on the property’. Without
any
evidence at all he asserted that both the LMS and the Independente
Kerk did this in terms of leases with ‘the landowners’,
conveniently overlooking that this was probably at that time Mr van
der Westhuizen, or members of the Schoeman family, not the
Van der
Veens, were the owners of the property. He recited a potted history
of the developments from the South African Union of
Voluntary
Churches to the establishment of the UCCSA in 1967. On the basis of
this history he claimed that the Independente Kerk
ceased to exist in
1859 and that when CUSA, and subsequently the UCCSA, were formed any
rights in relation to these entities passed
to them, although by what
process he did not say.
[54]
Mr Botha’s reliance on leases, which
he did not produce and of which he could have had no knowledge,
resulted in him avoiding
the crucial question of who was in fact
exercising the right to use the property. There were two
alternatives. The one was the
Community, the members of which
practised the formal side of their religious observance in a building
they had constructed on the
property in the nineteenth century. They
were linked from time to time with other church entities in the
district. This provided
them with access to ordained ministers and
other facilities, but they remained free to follow their own course
if they wished to
do so, as they have in fact done. It was people
drawn from the Community who were attending the church and fulfilling
functions
in it irrespective of changes in outward association. For
example, Mr Stal said that he had been the evangelist at the
Grootkraal
congregation for the past ten years, which encompassed
times when they were associated with the Independente Church in
Oudtshoorn,
as well as the present when they are an outstation of the
Grace Church International. Other deponents confirmed that they have
always been members of the Grootkraal congregation irrespective of
its wider associations with the UCCSA, the Independente Kerk
or Grace
Church International.
[55]
The other possibility, which seemed to be
implicit in Mr Botha’s affidavit, was that the right to use the
property for religious
purposes was exercised from time to time by
various entities external to the Community. He claimed that they were
exercising rights
in relation to the property by virtue of
independent arrangements with the landowner. The problem with that
approach was that it
did not explain how the right to use the
property was transferred from the LMS to the Independent Church; from
there to the South
African Union of Voluntary Churches; thence to
CUSA; and, eventually to the UCCSA. It also left unresolved the
relationship of
the Oudtshoorn Congregational Church to the
Grootkraal Church and how, after the split in 1995, the Oudtshoorn
Congregational Church
fell out of the picture and was replaced
initially by the Independente Church in Oudtshoorn and thereafter by
the Grace Church
International. Mr Botha did not address the question
of how, if the right to use the church vested in these separate
entities,
it was passed from one to the next, without any involvement
on the part of the landowner. The obvious answer was that it was the
Community that were vested with the right and, as they from time to
time associated with institutions in the wider church, those
institutions came at their invitation and request to participate in
the religious life of the Grootkraal congregation and the Grootkraal
Community.
[56]
This understanding is
entirely in accordance with the Congregational roots underpinning the
establishment of the Grootkraal church.
We know that until it became
an outstation of the Grace Church International it had always been
part of an essentially Congregational
body, whether that was the LMS,
the Dysselsdorp mission, the Independente Church in Oudtshoorn, as
the Oudtshoorn Congregational
Church was originally known, CUSA or
the UCCSA. Mr Botha appeared to think that, like other denominations,
control of a local church
community rested with the top structures of
the organisation and not the local community. That is incorrect in
relation to Congregational
churches. The article on Congregationalism
in the Encyclopaedia Brittanica
[57]
commences with the following passage:
‘
Congregationalism
,
Christian movement
that arose in England in the late 16th and 17th centuries. …
It emphasizes the right and responsibility
of each properly organized
congregation to determine its own affairs, without having to submit
these decisions to the judgment
of any higher human authority, and as
such it eliminated bishops and presbyteries.
Each
individual church is regarded as independent and autonomous. …
Their emphasis on th
e
rights of the particular congregation and on freedom
of conscience arose from their
strong convictions concerning
the sovereignty of
God and the priesthood of all believers. …
Congregationalists were originally called Independents,
as they still are in Welsh-speaking communities.’
(Emphasis
added.)
[57]
When the activities of the Grootkraal
Community and its church are understood in the milieu from which they
sprang, it must be accepted
that their involvement with other bodies
in the wider church did not affect their independence. Accordingly
the approach adopted
by Mr Botha, that the rights of the Grootkraal
Community to use the property for their religious activities were
taken over by
the various bodies he mentions, proceeded from a
misunderstanding of the relationship between the Grootkraal church
and these bodies.
[58]
The consequence of this misconceived
approach to the principles of
vetustas
was that the Trust made no attempt to
establish that when the Grootkraal Community started exercising the
right to use the property
for their religious purposes they did so
unlawfully. It accordingly failed to discharge the onus cast upon it
by the presumption.
The Community’s claim to be vested with a
public right must therefore succeed. I turn to consider the precise
content of
that right and the definition of the property over which
the Community is entitled to exercise that right.
The
public right
[59]
It is first necessary to formulate the
terms of the public right. The Community sought a declaration in the
following terms:
Declaring
that the First Appellant, the Grootkraal Community, being all the
families and individuals who live and work on farms
in the valley
which is known as the Grootkraal-Kombuys area, as a portion of the
public has the right, in the form of a public
servitude to use and
occupy the said property … for the purposes of conducting a
church, school and any other community
activity, with ancillary
rights.’
[60]
This formulation was not criticised by
counsel appearing for the Trust. In the light of my conclusion that
the right was created
in favour of the Community for religious
purposes and that other uses of the property, including that of the
school, were adjuncts
thereto, it is too widely formulated. If the
Community were to abandon the use of the property for religious
purposes, it is difficult
to see on what basis they could continue to
demand to use it to operate a school. No right to use it for a
school, separate from
the activities of the church, was established.
Nor was a right established to use it for community purposes separate
from the church.
It would not be within the scope of the right to
turn the buildings on the property into a social club for the
Community, notwithstanding
that the church had ceased to operate
there. The existence and continued operation of the church was and is
the fulcrum around
which the related activities must revolve.
[61]
The words ‘for the purposes of a
church, school and any other community activity with ancillary
rights’ must be amended
to reflect this. An appropriate
formulation would read ‘for the purposes of a Christian church
and any related community
activities, including the conduct of a
school’.
[62]
The next issue is the
definition of the property over which this right is capable of being
exercised. It is helpful at this point
to insert a survey diagram of
the property claimed by the Community being the area demarcated by
points ABNPQRSTUVGHJKLM on the
diagram.
[58]
[See
PDF for diagram]
[63]
Ms Kiewits claimed that at all times the
Community had used the entire property so demarcated. This was not
borne out by the evidence.
The wedge shaped portion between the
boundary AM and the rear of the main building was for many years
unused. In about 2000, Mr
H W J van der Veen suggested to the school
principal that it be cleared and used for a vegetable garden. That
was done and it has
continued to be used for that purpose ever since.
It cannot, however, be regarded as falling within the original right
and the
permission granted by Mr H W J van der Veen cannot be
construed as extending the original grant.
[64]
The same is true of the area on the plan
demarcated by the letters BNPQRSTUVGFEDC, which is referred to in the
evidence as the ‘gruispad’.
Mr Wicomb, a teacher at the
school for many years, said that this was not part of the area
available for use by the school, although
the children would venture
there to play when there were gaps in the fence affording them
access. It too cannot be said to be within
the terms of the original
right or any extension thereof.
[65]
A more complex situation arises in relation
to the balance of the area. A dotted line marked XZ is shown on the
plan. Mr Markus,
who hired the entire farm De Kombuys from Mr H W J
van der Veen, from 1995 to 2010, placed it there. He said that XZ
represented
the area excluded from the lease because it was the
portion of the property used by the school. Mr Wicomb, who taught at
the school
from 1973 to 1983, confirmed this. He said that when he
was teaching there the only buildings on the property were the old
toilets
marked P1 and the main school building, which accommodated
both school and church. The building P3, depicted as close to the
boundary
line DEFG, was apparently a farm worker’s cottage. The
evidence shows that at some indeterminate time this came to be
occupied
by the school principal and thereafter it has for a number
of years been used as an additional classroom.
[66]
According to the current school principal,
Mr Metembo, when he arrived at the school in 1994, P3 was occupied as
his predecessor’s
residence. As he did not want to use it for
that purpose Mr H W J van der Veen suggested that it should be used
as an additional
classroom, which is the purpose it still fulfils.
It, and the surrounding land, has accordingly been in continuous and
undisturbed
use by the school since around 1983 with the consent of
the landowner at the time. This casts some doubt upon the relevance
of
Mr Markus’ description of the portion of land excluded from
the farm that was let to him. If his description was correct he
provides no explanation for the school’s use of P3 as a
classroom throughout the period of the lease.
[67]
The land around P3 was included in the land
that Mr H W J van der Veen tried to sell at a nominal price and
transfer to the Oudtshoorn
Congregational Church shortly before his
death. Its situation in relation to both the church and school and
the surrounding farm,
from which it is completely separated by a
stream, is such that it is safe to infer that it was intended by Mr
van der Veen that
the existing right to use the property for
religious and related school purposes should include this land. It
must be borne in
mind that when one is dealing with the use of a
piece of land since time immemorial it would not have been surveyed
at the outset,
but would have developed organically. There would have
been some flexibility in regard to its precise extent as the needs of
the
Community altered and this seems to me to be within that margin
of flexibility.
[68]
The area over which the public right
vesting in the Community extends is therefore the area demarcated by
the points BCDEFGHJKL
and a line parallel to AM. This will need to be
surveyed and further defined before the public servitude can be
registered. For
the purposes of surveying that line it is to be drawn
parallel to AM and at a distance of 2 metres from the rear corner of
the
‘Hoof skoolgebou’ nearest to the line AB. It is of
course open to the Trust to permit the servitude to be registered
over a larger area, for example including the entire area up to AM,
where the vegetable garden is situated, but that would be a
matter
for it to decide in the light of this judgment. Our task is limited
to defining the area over which the Community’s
right has been
established.
[69]
That brings me to two objections raised in
the Trust’s heads of argument concerning registration of a
servitude. The first
was that to do so in respect of the property
over the Grootkraal farm would require the consent of the Minister of
Agriculture,
as the servitude in question falls outside the
categories listed in ss 6A(1)(
a
)
and (
b
) of
the Subdivision of Agricultural Land Act 70 of 1970. The second was
that in terms of
s 66(1)
of the
Deeds Registries Act 47 of 1937
the Registrar’s power in relation to public servitudes is
discretionary and subject to the Registrar being satisfied of a
subjective jurisdictional fact.
[70]
The second point can be
disposed of easily. While the power of the Registrar to register a
public servitude is expressed in the
section in discretionary terms,
it is a power combined with a duty.
[59]
The Registrar of Deeds, Cape Town was cited in these proceedings and
has never raised an objection to the registration of the servitude
claimed by the Community. The point was rightly not pressed in oral
argument.
[71]
The Registrar likewise did not raise an
objection arising from the Subdivision of Agricultural Land Act. As
the point was not canvassed
in the papers we have no information
about the practice in that regard. There is some doubt, given the
definition of ‘agricultural
land’ in the Act, whether,
notwithstanding its rural nature, this land is still agricultural
land, but for present purpose
I accept that it is. The answer to the
point is that the purpose of s 6A is to enable the Minister of
Agriculture to block
the creation of new servitudes that might unduly
burden agricultural land at a future date. It is not to prevent the
registration
of public servitudes that have existed since time
immemorial. In other words this is not a situation in which the
discretion has
any tangible effect. For the reasons given in para 70,
the minister has a power to consent, combined with a duty to do so.
The
order directing that a servitude be registered will be made
subject to the Minister’s consent being obtained.
Result
[72]
In the result the following order is made:
1
The
appeal succeeds with costs, such costs to include those consequent
upon the employment of two counsel.
2
Paragraph
(a)(ii) of the order of the High Court is set aside and replaced by
the following:
(a) It is declared that the First Appellant, the
Community of Grootkraal, being all the families and individuals who
live and work
on farms in the valley which is known as the
Grootkraal-Kombuys area, as a portion of the public, has the right,
in the form of
a public servitude, to use and occupy the property
demarcated by the points BCDEFGHJKL and a line drawn parallel to AM
and at a
distance of 2 metres from the rear corner of the ‘Hoof
skoolgebou’ nearest to the line AB on the survey diagram,
Annexure
“A1” to the affidavit of Trui Kiewits at page
141 of the record, for the purposes of a Christian church and any
related
community activities, including the conduct of a school.
(b)
Subject to the consent to registration of
the Minister of Agriculture in terms of section 6A(1) of the
Subdivision of Agricultural
Land Act 70 of 1970 first being had and
obtained, the Ninth Respondent is directed to register a public
servitude in the terms
set out in para (a) above over the property
described as Remainder of Portion 40 (Portion of Portion 2) of the
farm De Kombuys
No 28, in the Municipality and District of
Oudtshoorn, Province Western Cape, in extent 117,6629 (One Hundred
and Seventeen comma
Six Six Two Nine ) hectares held by Deed of
Transfer T5665/2010.
(c) The Kobot Business Trust (IT 969/2009) as
represented herein by its trustees, the First to Third Respondents,
is to pay the
costs of the counter application, such costs to include
those consequent upon the employment of two counsel, where two
counsel
were employed.
____________________________
M J D WALLIS
JUDGE OF APPEAL
Appearances
For
appellant: A M de Vos SC (with her D Brand)
Instructed
by: Lawyers for Human Rights, Pretoria;
Webbers
Attorneys, Bloemfontein.
For
first to third respondents: L Wilkin (with him U K Naidoo)
Instructed
by: James King & Badenhorst Attorneys, Oudtshoorn;
Bezuidenhouts
Attorneys, Bloemfontein.
[1]
UCC is an acronym for United
Congregational Church.
[2]
The property description of
the entire farm is Remainder of Portion 40 (Portion of Portion 2) of
the farm De Kombuys number 28
and a 1/6
th
share in Portion 1 of the farm Groenfontyn in the Municipality and
District of Oudtshoorn, Province of the Western Cape.
[3]
Minister of Safety and
Security v Sekhoto and Another
[2010]
ZASCA 141
;
2011 (5) SA 367
(SCA) para 22.
[4]
Meridian Bay Restaurant
(Pty) Ltd and Others v Mitchell NO
[2011]
ZASCA 30
;
2011 (4) SA 1
(SCA) para 14.
[5]
J M Otto ‘
Vetustas,
Onheuglike Tye en
die Witpad by Langebaan’ 19(1) 2013
Fundamina
48 contains a
helpful discussion of its origins and reception in South African
law. His article commences with this sentence,
which I have borrowed
and translated.
[6]
De Beer v Van der Merwe
1923 AD 378
at
383.
[7]
J E Goudsmit
The
Pandects; A Treatise on the Roman Law
(translated
by R de Tracy Gould), §81, p 224.
[8]
Berg v Gossyn (2)
1965
(3) SA 707
(O) at 709C-D.
[9]
Langebaan Ratepayers’
and Residents’ Association v Dormell Properties 391 (Pty) Ltd
2013 (1) SA 37
(WCC)(
Langebaan
Ratepayers
) para
25.
[10]
Langebaan Ratepayers
para
27.
[11]
At 386.
[12]
Divisional Council of
Fraserburg v Van Wyk
1927
CPD 285
at 306
[13]
Goudsmit, op cit, 225;
L
E Krause ‘The History and Nature of Acquisitive Prescription
and of Limitation of Actions in Roman-Dutch Law’
(1923) 40
SALJ
26
at 38.
[14]
Goudsmit, op cit, 226.
[15]
J C de Wet (1943) 7
THRHR
187 at 189 argued
that the old authorities, especially Savigny, only permitted the use
of
vetustas
to prove the existence of three public servitudes relating to
private rights of way and to the right to obtain water from a public
source or discharge water over a neighbour’s property. Krause,
ibid, said that Savigny confined the operation of
vetustas
to public rights.
C G van der Merwe
Sakereg
(2d ed, 1989) 548
regards this as the better view and repeats it in 24
LAWSA
(2
nd
)
para 624.
H J Delport
and N J J Olivier
Sakereg
Vonnisbundel
(2
nd
ed, 1985) 672 take the opposite view.
[16]
Sakereg
op
cit 544; A J van der Walt
The
Law of Servitudes
530.
[17]
Tshwane City v Link Africa
and Others
2015
(6) SA 440
(CC) para 104.
[18]
Langebaan Ratepayers,
op
cit, fn 10.
[19]
Du Toit v Aberdeen
Divisional Council
1910
CPD 477.
[20]
Van Heerden v Pretorius
1914 AD 69
;
Nel
v Louw
1955 (1) SA
107 (C).
[21]
Such as that in issue in
Bamford v Minister
of Community Development and State Auxiliary Services
1981
(3) SA 1054
(C), although there the public right arose from the
terms of a will.
[22]
Tshwane City v Link Africa
and Others
, op
cit, para 138.
[23]
J C Sonnekus and J L Neels
Sakereg
Vonnisbundel
(2
nd
ed, 1994), para 8.1.9, p 712; A J van der Walt
The
Law of Servitudes
530-531.
For some reason the author described
vetustas
as ‘the most
problematic way in which the existence of a public servitude can be
established’ (p 534) but he did not
explain why it was
problematic.
[24]
Ibid 531.
[25]
The copies of the Missionary
Register covering the period until 1855 are available from the Yale
University Library in its section
of Mission Periodicals Online:
Missionary Register (CMS) under the letter M and were digitized from
the originals held by the
Harvard University Library. See
https://guides.library.yale.edu/c.php?g=296315&p=1976907
[26]
Geo P Ferguson ‘CUSA.
The Story of the Churches of the Congregational Union of South
Africa’ (1940) (hereafter ‘Ferguson’)
a copy of
which was kindly made available to the Court by the Cory Library at
Rhodes University.
[27]
Consolidated Diamond Mines
of South West Africa Ltd v Administrator S W A and Another
1958
(4) SA 572
(A) 610A. C W H Schmidt and H Rademeyer
Law
of Evidence
(looseleaf)
paras 6.2.2 and 6.2.2.3, pp 6-12 to 6-14 (Issue 1); D T Zeffertt and
A P Paizes
The
South African Law of Evidence
(2
ed, 2009) 873-876; P J Schwikkard and S E van der Merwe
Beginsels
van Bewysreg
(3
ed, 2016) para 27.4.3, pp 525-6 and para27.5.7, p 531. The position
is the same in the United Kingdom, Colin Tapper
Cross
and Tapper on Evidence
(12
ed, 2010) 78-79; Australia, Andrew Ligertwood
Australian
Evidence
(3 ed,
1998) paras 6.36 – 6.38, pp 412- 415; and Canada; John Sopinka
Sidney N Lederman and Alan W Bryant
The
Law of Evidence in Canada
(2
ed, 1999) 1058-1059.
[28]
It was originally called the
Missionary Society but changed its name to London Missionary Society
in 1818.
[29]
Ferguson, op cit, 22.
[30]
Rev John Philip ‘Researches
in South Africa’ (1828) Vol 1, Chapter XII, pp 237 et seq.
[31]
Ferguson, op cit, 101-102.
[32]
Originally called Dysel’s
Kraal and, from 1842, Dysalsdorp. I have used the current spelling
throughout the body of the
judgment.
[33]
Ferguson, op cit, 106.
[34]
The date is contained in a
list of churches and missions of CUSA in South Africa in The
Congregational Year-Book 1901, a digitized
version of which taken
from the New York Public Library is available at
https://babel.hathitrust.org/cgi/pt?id=nyp.33433069128423;view=1up;seq=659
[35]
Ferguson, op cit, 109. The
Missionary Register for 1840, p 37.
[36]
The Missionary Register 1841,
p 33.
[37]
The Missionary Register 1843,
p 38.
[38]
The Missionary Register 1844,
pp 40-41.
[39]
The Missionary Register 1845,
p 39.
[40]
The Missionary Register 1846,
p 29.
[41]
The Missionary Register 1847,
p 33.
[42]
The Missionary Register 1850,
p 25.
[43]
The Missionary Register 1851,
p 24. The spelling of Oudtshoorn had obviously not become fixed.
[44]
The Missionary Register 1855,
p 28.
[45]
Ferguson, op cit, 32
[46]
An 1850 report reflects this
as a recently formed
‘
European
Church’ separate from Pacaltsdorp, which only became
independent in 1877; Ferguson, op cit, 28-29.
[47]
Ferguson, op cit, p 109.
[48]
There is no reference to them
or to Rev Anderson in Ferguson, but detailed membership lists are
only given in respect of the Eastern
Cape and they would not have
fallen into that district.
[49]
Ferguson, op cit, pp 50-51.
[50]
Available in digitised form
from the New York Public Library at
https://babel.hathitrust.org/cgi/pt?id=nyp.33433069128423;view=1up;seq=657
(accessed 14 November 2018)
[51]
Congregational Year Book
1901, p 524.
[52]
South African Heritage Agency
site at https://www.sahra.org.za/sahris/sites/920680001.
[53]
In terms of Ordinance 18 of
1921 (Cape).
[54]
See Stephen Adrian Craven
‘Management Problems at Cango Cave’ a Ph D thesis
submitted in the University of Cape Town
at 29 and 36. The
information there is derived from documents in the Cape Archives.
Thesis accessed on 16 November 2018 and available
at
https://open.uct.ac.za/bitstream/item/20037/thesis_sci_1992_craven_stephen_adrian.pdf?sequence=1
Mr van Wassenaer is reflected
as having served as chief guide at the
caves from 1891 to 1934 and to have been exploring them since 1880.
[55]
He died in the early part of
this century between 2005 and 2009 and was then in his nineties.
[56]
It can hardly be overlooked
that many famous schools in South Africa, such as Inanda Seminary
and Adams Mission, were established
by missionaries associated with
the Congregational Church as part of their activities.
[57]
Encyclopaedia Brittanica
(Online edition). Daniel T Jenkins ‘Congregationalism’
available at https://www.britannica.com/topic/Congregationalism.
Professor Jenkins was the Weyerhauser Professor of Systematic
Theology at Princeton Theological Seminary.
[58]
A full page version is
annexed at the end of this judgment.
[59]
Schwartz v Schwartz
[1984] ZASCA 79
;
1984
(4) SA 467
(A) at 473H-474E.