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[2013] ZAECMHC 6
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Shell South Africa Marketing (Pty) Ltd and Another v Haku (1581/11) [2013] ZAECMHC 6 (26 March 2013)
NOT REPORTABLE
IN
THE EASTERN CAPE HIGH COURT,
(EASTERN
CAPE, MTHATHA)
CASE NO: 1581/11
In
the matter between
SHELL
SOUTH AFRICA
MARKETING
(PTY) LTD
............................................................
First
Applicant
BALRAZ
AUTO CC
..................................................................
Second
Applicant
and
THAMSANQA STEVE HAKU
..........................................................
Respondent
JUDGMENT
HARTLE
J
The first applicant owns immovable property described
as Portion 5 of the Farm Glendon in the municipal district of
Mthatha, which
it acquired in June 1996 under title deed TF 14/1996.
It leases the land to the second applicant from whence the latter
operates
a retail business t/a “
Shell
Ultra City Mthatha
”
. As the name
suggests, it is a petrol filling station which incorporates a 24
hour convenience store and a fast food restaurant
conducted under
the “
Shell Select
”
and
“
Steers
”
trademarks
and branding respectively.
1
The applicants complain that the respondent has erected
certain buildings and structures (the encroachment) on the first
applicant’s
property in the nature of a fenced car wash and
tavern.
2
Initially the respondent conducted his business from a
building situate on his own property and within the physical
boundaries
thereof, but during 2007 he extended it over the boundary
line, constructing a lapa with seats around the side and later
erecting
a fence around the building and structures as well.
They seek an interdict for the demolition/removal of
the encroachment and an order restoring possession to them of the
portion
encroached upon respectively, together with certain
ancillary relief.
The area of the alleged encroachment relied upon by the
applicants in their founding papers is depicted on a layout plan
drawn
by Haines Palmer Reabouw and Associates, Professional Land
Surveyors employed by them, marked Annexure “AL 4” (Plan
A).
3
It represents a quadrilateral shape extending over the
boundary of the first applicant’s property in the south-
western
corner of portion 5.
The first applicant claims that the second applicant
protested continuously regarding the encroachment after the
extensions were
erected. A formal letter of demand - constituting
according to the first applicant a “
further
letter of demand
”
,
4
was addressed to the respondent on 29 April 2010. This
letter (which is attached to the founding affidavit) exhorts the
respondent
to remove the encroachments (comprising an “
illegal
”
car wash and tavern) to avoid the first applicant
approaching this court for an interdict. The respondent denies
receiving any
demand and claims in his answering affidavit that
despite the last structure being built in 2006, and the current
fence having
been in place since 2005 already, the owners of Ultra
City have never before complained to him about any encroachment. On
the
contrary, he alleges that the sole member of the second
applicant requested him in 2006 to sell his site to him (but he
declined)
which according to him denotes the applicants’
acceptance of his ownership thereof. As far as he is concerned,
apart from
a minor irritation about a drain onto his site, they have
been “
living
peacefully
”
as neighbours.
Far from believing that he has erected the structures
and buildings comprising his business partly on the first
applicant’s
property, he pleads that they are rather “
within
(
his
) land which was
lawfully allocated to (
him
)
”
by an authorized headman responsible for the Kwa Payne
administration area during 2002. He is confident that an
encroachment could
not arise because the two properties are distinct
from each other; the applicants’ property being at “
Glendon
Farm
”
whilst his is at “
Payne
Jersey Farm
”
. Further, according to
him, the two properties are separated by a tar road popularly known
as “
KwaLindile
”
(previously a gravel road) which was constructed by the
applicants themselves, and road rails,
5
which have always served as the boundary between Ultra
City (at Glendon Farm) and Payne Jersey Farm where his business is
situate.
In amplification of his competing claim to the alleged
area of encroachment, the respondent clarifies that in approving the
allocation
of a business site to him, the headman of Payne Jersey
Farm location (in consultation with the Chief of all areas under the
Mpeko
Traditional Council which includes Payne Jersey as well as
Glendon Farm respectively) physically took him to the relevant land
and pointed out the extent and measurement thereof. Representatives
of the Department of Agriculture were also present at the
time.
6
He then instructed S Vena & Associates (ostensibly
also land surveyors) to draw a “
map
”
showing the extent of the land allocated to him
together with its measurements attached to his answering affidavit
marked Annexure
“B” (The applicants refer to this in
their papers as Plan B).
This diagram purports also to be a professional layout
plan depicting an obelisk shape of land on a diagram the tapered end
of
which (at north-east) does, on the face of it, bear resemblance
to the same alleged “
area of encroachment
” shown
on the applicants’ Plan A. On it a road is depicted as
separating the respondent’s property from “
Ultra
City
”. (I need mention that no affidavit was deposed to by
a representative of Vena & Associates to confirm that the plan
ostensibly drawn by them depicts an official representation of the
land allocated to the respondent, or that it was prepared
and
presented contemporaneously with the transfer of the title in and to
the respondent. In fact, it is undated and unacknowledged.
Other
than the “
Ultra City
” marker at the north-eastern
end, it is also devoid of any description as to specific location.)
A further “
map
”
(Annexure “C”) purports to demonstrate that
his property resorts under Payne Jersey Farm and that it is
demarcated
from the respondent’s by a road.
7
Also attached is a copy of a “
general
plan
”
of the whole area said to have
been obtained from the Department of Agriculture and “
approved
”
by the Surveyor-General (Annexure “D”). I
point out however that this plan, which is dated 3 November 1960,
appears
to have been commissioned by the then Bantu Administration
and Development concerning reclamation proposals for trust farms in
Mthatha at the time. Although it is ostensibly unhelpful to prove
ownership or the location of the true boundary between the
parties’
respective properties, evidently the respondent has annexed it to
show the areas of responsibility of each headman,
part of the
Glendon Farm on one side of the road resorting under “
Kwa-Payne
”
and the other portion continuing over the road under
the “
Glendon
Camp
”
.
In addition, the respondent has produced a certificate
of registration dated 12 January 2011 issued to him by the Eastern
Cape
Liquor Board – being the ostensible authority to sell
liquor under the auspices of “
Nongoloza’s
Tavern
”
upon premises “
situated
at PAYNE JEZY FARM, EAST LONDON ROAD, MTHATHA
”
(Annexure “F1”);
8
as well as a Permit to Occupy a “
shopping
complex allotment
”
situated in “
PAYNE
ADMIN area district of Umtata
”
dated
24 June 2002 issued under section 5 of Proclamation 174 of 1921
(Annexure “F2”).
Mr Z N Abenta, the headman during 2002 of Payne
Locality – which is said to include Payne Jersey Farm, has
deposed to an
affidavit in confirmation of the respondent’s
claim. According to him the contentious section of property laid
claim to
by the first applicant co-incides with property allocated
by him to the respondent at the time. He avers that he conducted a
personal site investigation and can say with confidence that the
alleged area of encroachment (including the surrounding fence)
is
within the boundary of the allocated site.
The reigning headman of Payne Locality and the Chief
respectively have similarly deposed to confirmatory affidavits to
the effect
that the alleged area of encroachment resorts within the
boundary of the property allocated to the respondent.
Mr A
Reabouw
of Haines Palmer Reabouw, who
claims to have been personally responsible for the “
survey
”
pursuant to which the layout plan over the first applicant’s
property was produced (Plan A referred to above), deposed
to an
affidavit on behalf of the applicants in which he confirms the
accuracy thereof, and in particular the measurements, markings
and
demarcations set out therein. He further criticizes the
documentation produced by the respondent in support of his claim
to
be the owner of the contentious area as having no probative value.
One of his concerns, which I consider to be of no
moment, is that none of the documents produced by the respondent
reflect his
property at “
Payne Jersey Farm
” to
exist or to be adjacent to the first applicant’s. Although the
respondent has not produced any documentation
which records how his
property is described in the deeds office, I accept that the
reference to “
Payne Jersey Farm
” is simply the
name by which the area is colloquially known and managed by the
relevant headmen. This is evident from the
letter of the headman
(Annexure “A”) who writes concerning “
yakwaPayne
”.
Annexure “D” is also endorsed with an area “
Kwa-Payne
”
next to “
Glendon Camp
”. This first area
ostensibly includes sub-areas (or farms) titled “
Jersey
”,
“
Safe Pens
” and “
Glendon
”
inter alia
. The Permit to occupy and liquor licences equally
pertain to property resorting under the “
Payne
”
area of responsibility.
But it is in any event common cause that the property
identified by the respondent as his on Annexure “B” to
his answering
affidavit (Plan B) is depicted as being adjacent to
the first applicant’s. There is only one contentious car wash
and tavern
and that is the respondent’s.
That leaves the issue as to who is the true owner of
the section of land on which the building and structures referred to
in the
founding affidavit have been built and, therefore, whether it
constitutes an encroachment on the first applicant’s property
at all. Since the applicants have sought to vindicate their rights
by motion court proceedings, the dispute of fact which has
arisen
falls to be determined on the basis of the
Plascon-Evans
Rule.
9
The applicants contend in this regard that the dispute
is not a genuine one in the sense that the respondent’s claim
to
ownership is clearly untenable for two reasons. The first is that
the site which the respondent says was allocated to him i.e.
Payne
Jersey Farm is not adjacent to the first applicant’s property.
The second is that the first applicant is indisputably
the
registered owner of Portion 5, the extent and demarcation of which
clearly appears from the official diagram referred to
in the title
deed, hence there can be no quarrel in this regard.
Regarding the first aspect, I have already dealt above
with what I believe to be applicants’ misunderstanding of the
respondent’s
appellation of his property as “
Payne
Jersey Farm
”. Self evidently (and by virtue of the
applicants’ recognition of Plan B as depicting property
adjoining portion
5), the respondent lays claim to property which is
indeed contiguous to it; otherwise the overlap (and the allegation
of the
encroachment) would be irrelevant. (Inasmuch as it has been
suggested that the respondent has not proved ownership of the
adjacent
property, I mention that I have for present purposes
approached the determination of the issues in this matter on the
basis of
his interest at least in the area depicted on Plan B.)
Concerning the second aspect, the submission is that
the first applicant’s claim to the alleged area of
encroachment is
supported by and accords with the official Surveyor
General’s diagram pertaining to portion 5 Glendon Farm, read
together
with the title deed, which is dispositive of the matter.
The fact of the registration and the demarcation as indicated in the
official records trumps the respondent’s reliance on the mere
pointing out of a piece of property by the headman and Chief
and the
drawing up of a plan pursuant to such pointing out which does not,
so the argument goes, confer a valid transfer of title
in and to
immovable property.
An owner who wishes to claim relief consequent to an
encroachment onto property must allege and prove:
ownership of the property encroached upon; and
that the encroaching owner has erected a structure or
building partly on the claimant’s property and partly on the
adjoining
property.
10
Both requirements are in issue
in casu,
but
relative only to the question of the true location of the common
boundary between the respective properties. Ownership by
the first
applicant of portion 5
per se
is not in dispute, although
where its property begins and ends on the southern boundary is.
Accurate surveys are a prerequisite for the
establishment and recording of the position of boundaries between
different plots
of land. An effective system of land title
registration is impossible unless land is divided into units which
are property surveyed
and represented on a diagram or general plan.
A duly approved diagram establishes, for cadastral purposes, the
description of
a specific land unit; the extent and boundaries of
such a unit; the description of the beacons marking the unit and
co-ordinates
fixing the position of the beacons; and the
description, position on or in relation to the unit of any servitude
feature already
registered, or to be registered, which affects the
unit.
11
Registration of land and the rights in land are
regulated by the Deeds Registries Act.
12
This Act provides for the recording in the deeds office
of a particular area of a diagram of every piece of land in that
area.
The diagram is framed after a specific piece of land, which
may be a farm, erf, lot, plot or stand, has been surveyed. Thus the
deeds office provides a complete picture in miniature of all the
surveyed and transferred land in South Africa.
13
A further provision of the Deed Registries Act requires
the registrar of deeds to register any real right in or to land on
the
diagram of the parcel of land recorded as explained above.
Ownership and other real rights in land can be transferred from one
person to the other, at least where the transfer is effected by
delivery or
traditio
, only by means of registration in the
deeds office of a deed of transfer, a deed of grant or a notarial
deed. This transfer cannot
take place except in accordance with an
approved diagram of the relevant piece of land. Every registrable
land unit must accordingly
have its own separate diagram, except if
the Surveyor-General has approved a general plan for a specific
area. A diagram approved
by the Surveyor-General must be attached to
every deed of grant, except a deed of grant in respect of land which
has been alienated
and reacquired by the state or which has already
been held by the state under a certificate of registered state
title.
The deed to which the diagram is attached is known as
the diagram deed and a reference to it is contained in every
subsequent
deed of transfer or certificate of title, to ensure that
there can be no doubt about the identity of the land in question.
The
diagram is decisive proof of boundaries, as the description of
boundaries mentioned in a diagram need not be repeated in any title
deed, if a suitable reference to the diagram is made in the relevant
title deed.
14
In this regard the first applicant’s property is
described in the title deed as follows:
“
CERTAIN
piece of land being PORTION 5 OF
THE FARM GLENDON, situate in the District of UMTATA;
MEASURING Four comma four eight
two five (4, 4825)
Hectares;
EXTENDING as Deed of Grant No. G
575/1988,
with Diagram
No. 99/1985 annexed
,
made in favour of KAISER DALIWONGA MATANZIMA on the 13
th
December 1988 and subsequent
Deeds of Transfer, the last of which No. TF 26/1989 made in favour of
SHELL SOUTHERN MARKETING (PROPRIETARY)
LIMITED on the 29
th
November 1989,
will
more fully point out
;
SUBJECT to the special
conditions created in Deed of Grant No. G 575/1988 dated 13
th
December 1988, …:”
(Emphasis added)
A photocopy of Diagram No. 99/1985 (Plan C) was
produced by the first applicant by way of its replying affidavit.
15
It appears on the face of it to resemble Plan A (the
layout plan prepared by Haines Palmer & Reabouw) except in
certain respects
which I will shortly return to. Evident from it the
fixed points A B C D E F G H represent a total surface area of 4,
4825 hectares
(ostensibly incorporating portions 6, 7, 11 and 14).
16
On the west side (A H) the first applicant’s
property is flanked by the Remainder of the Farm Glendon. On the
north side
(A B C D) the boundary is represented as a road. On the
east side the points D E F are flanked by remainder erf 912 and, F
G,
by the National Road to Mthatha. On the critical south side (A H)
this boundary is also indicated as a road and below it is the
Remainder of the farm Glendon. The description to the corresponding
diagram notes the presence of beacons at the fixed points
of “
20mm
iron peg with stones
”
.
Perhaps of significance (as the first applicant may be
confusing an access road across its property with the road featured
as
a boundary on the southernmost side of Portion 5 which the
respondent contends demarcates its property from his), a geometrical
figure depicting a “
Right of Way
”
has also been defined on the diagram, ostensibly by the
Surveyor General.
17
I need mention further that the first applicant has
also made available a photocopy of the General Plan for the area on
which
the alleged area of encroachment has been highlighted in blue
ink, which area ostensibly overlaps a road coming down from north
and ending where it meets the western boundary of Glendon No 26,
marked “
Umtata Bypass
”
.
Plan C refers in turn to the original diagram no
610/1884, a photocopy of which the applicants have also provided
(Plan E). Evidently
this shows the full extent of the farm Glendon
no 26 before it was subdivided. It appears faintly from it that
portion 5 has
been carved out on the north eastern side above and on
the border of a either a road or a rail line. (The photocopy is not
very
clear.)
This appears to me to be exactly one of those matters
in which the court will be assisted by the opinion of a land
surveyor who,
as a result of his qualifications, training and
experience would be able to interpret, from what appears in all the
available
information in respect of previous surveys of every
involved and relevant piece of land, how the first applicant’s
property
is demarcated from the respondent’s and hold it up
for comparison with a field inspection. No doubt an examination of
the
contentious area is necessary with particular reference to the
specified beacons and boundaries described on the diagram (such
as
the feature of the road at A H for example). A prudent inspection
would also have regard to the extent and boundaries of the
property
allocated to the respondent (as well as the other contiguous
properties) as recorded in the deeds office in order to
make a
meaningful comparison and to discern whether any possible error
exists in the records of the deeds office. If a problem
exists
merely in understanding and applying the rules applicable to a
determination of the boundaries of the involved properties,
such
expert guidance would also be of great assistance to the court.
The applicants submit that there can be no questioning
the documentation furnished by them and, although the respondent has
not
challenged their authenticity by any admissible contrary opinion
evidence, to my mind several questions arise which require
clarification
on the part of Mr
Reabouw
.
Firstly, for what purpose was the “
survey
”
relied upon by him conducted? It postdates transfer of
Portion 5 Glendon Farm to the first applicant as well as the date on
which
the respondent is said to have extended his building and
erected the additional structures over the boundary line. Perhaps it
was commissioned to advise the applicants regarding their rights in
respect of the alleged encroachment, but in any event does
not
appear to be a true “
survey
”
within the meaning attributed to this function as
provided for in the
Land Survey Act, No 8 of 1997
. Secondly, if Plan
A purports to be his (perhaps official) representation of where the
parties’ respective boundaries lie,
why does it differ from
Plan D dated “
September 2009 –
December 2011
”
which the applicants
have latently produced, for example in respect of the total area of
the alleged encroachment. On Plan A this
is reflected as being 876
m² but is adjusted on Plan D, without explanation, to 748 m².
Plan A further fails to show
portion 14, thereby depicting Portion 5
as being larger than it presents on Plan D, alternatively
representing that portion 14
is also its property.
18
On comparison some of the sides on the diagrams in Plan
A and D respectively are also drawn in different places and the
artificial
features of roads as cadastral boundaries is omitted.
When both plans A and D are compared with Plan C
ultimately, discrepancies are also evident in relation to how the
sides are drawn,
no doubt because further subdivisions since
transfer to the first applicant of the land were effected. The
addition too of the
“
right of way
” since the
transfer of the property to the first applicant (and its possible
impact on the boundary issue) requires elucidation
in view of the
right reserved to the “
Transkei Government
” in
the Deed of Grant which the transfer was subject to, to resume the
whole or portions of the land held if required for
public purposes,
to make roads, or for “
competent authorities
” to
alter roads etc.
The fact that the first applicant’s property is
bounded on the south side by a road on the official diagram
representing
portion 5 gives credence to the respondent’s
claim that the road adjoining his business premises is in fact the
boundary
between his property and the first applicant’s. This
eventuality is supported in turn by the photographs supplied by the
applicants themselves which depict the road adjoining the fence
closest to the Ultra City forecourt. This physical manifestation
(coupled with the discrepancies highlighted above when compared with
the photocopies purporting to be the official diagram and
plan)
requires explanation.
Apart from the desirability to have before the court
oral expert testimony which assists it to understand and interpret
the registrar’s
survey records concerning the first
applicant’s property, it would be of great assistance to view
those applicable to the
respondent’s property as well. The
survey records pertaining to Portion 14 would also be essential to
have regard to since
it adjoins the first applicant’s property
and seemingly abuts the respondent’s property, or at least the
diagrammatical
representation of it, on the plans put forward by Mr.
Reabouw
.
Although the deponent on behalf of the applicants
refers to a “
surveyed encroachment
(by the respondent onto Portion 5)” in his
replying affidavit, it is not apparent from Mr.
Reabouw
’
s
confirmatory affidavit that a true survey was carried out in the
sense contemplated by the
Land Survey Act. The
mere drawing of a
plan, albeit using the co-ordinates on the general plan in order to
make a comparison with Plan B, is of no
assistance in the absence of
an
in situ
examination
for purposes of refuting where the respondent says the physical
boundary of the road is plainly evident. If it is
his contention
that the respondent is misinterpreting the diagram because the
boundary between the beacons H and G is not a natural
one but rather
a rectilinear one, he does not say so at all. The fact that he does
not deal with the feature of the road (and
rail road) as
constituting a boundary at all is in my view significant in
determining, as I do, that there is insufficient evidence
before me
to make a definitive determination of the issues. If both the
diagram and grant or title deed are ambiguous or defective
(as may
be the case in the present instance), the grant is to be reasonably
construed in the light of all the surrounding circumstances,
including occupation, the belief of the owner and other persons
concerned, the opinion of surveyors, and so on.
19
For this reason, apart from the need for clarification
of the Surveyor-General’s documentation in relation to the
physical
features at the site, oral testimony regarding the complete
facts and surrounding circumstances should ideally be adduced.
Despite the reservations I have that this matter cannot
properly be resolved on the affidavits (and regardless of the
respondent’s
contention that the application ought to be
dismissed outright on the basis contemplated by
Rule 6
(5) (g)), I
believe that this is peculiarly one of those matters where in order
to ensure a just decision it would be appropriate,
in the light of
the parties’ equivocal claims to the property, to refer it to
trial. I am mindful that it is considered
a “
bold
step
”
20
for a court in an opposed application to refer the
matter to trial
mero motu
,
but much rides on the question whether the buildings and structures
erected by the respondent constitute an encroachment which
fall
possibly to be demolished. The thought occurs to me too that the
Respondent has not pleaded over (neither was argument presented
to
me in this regard on his behalf) to deal with the issue of whether
it would be just for the court to order the removal should
the first
applicant succeed in proving that the boundary line is where it
contends it is. In such an event the material facts
on which the
allegation of the injustice is based are required to be set out.
21
I express the hope that a proper investigation of the
matters which I have highlighted above may encourage an appropriate
settlement
of the matter. In the event that an exchange of expert
views supports a true boundary issue, the
Land Survey Act provides
its own mandatory machinery
22
for a resolve in this regard which may dispense with
the need for the drastic relief claimed by the applicants. Further,
although
it would not strictly have been necessary for the papers to
have been served upon the Registrar of Deeds at the outset by the
applicants, the competing claim to the property asserted by the
respondent may render it necessary to obtain his views on the
basis
envisaged by section 97 of the Deeds Registries Act. The land Survey
Act similarly requires that the Surveyor General be
given notice of
proceedings where the relief ultimately sought may affect the
performance of any act in his office.
23
The interests of other contiguous land owners possibly
require their joinder to the proceedings as well, as the
circumstances
may dictate.
In the result I make the following order:
the relief claimed by the applicants in the notice of
motion is postponed for trial on a date to be arranged with the
registrar;
the issues to be decided on trial shall be:
where the boundary lies between the first applicant
and the respondents’ respective properties;
whether the buildings and structures erected by the
respondent comprising the car wash and tavern extend over the
boundary of
his property onto the first applicant’s property
and thereby constitute an encroachment; and
if so, whether the court should exercise its
discretion in favour of granting the applicants the relief prayed
for in prayers
1 – 3 of the notice of motion.
the notice of motion shall stand as a summons, the
respondent’s answering affidavit shall stand as a plea and the
applicants’
replying affidavit as a replication;
the Uniform Rules shall apply to the further conduct of
the trial; and
the costs of the application shall stand over for
determination at the trial.
_________________
B
C HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF APPLICATION : 5 February 2013
DATE
OF JUDGMENT : 26 March 2013
APPEARANCES:
FOR
APPLICANTS: Mr R D E Gordon instructed by Cliffe Dekker Hofmeyer Inc.
c/o Smith Tabata Attorneys, Mthatha.
FOR
RESPONDENT : Mr Notyesi, Mvuso Notyesi Inc., Mthatha.
1
The
second applicant’s interest in the suit concerns its right to
use the property unfettered by the encroachment referred
to in the
judgment in order to conduct its business and meet its contractual
obligations to the first applicant arising from
the retail
agreement.
2
It
was suggested in the founding papers that the respondent’s
business operated on the area of encroachment was “
informal
”
,
but he put up proof of his authority for the sale and consumption of
liquor on and off the premises. Seemingly the Applicants
are
particularly aggrieved by the nature of the respondent’s
business being carried on on the adjoining property and how
this
impacts upon theirs, but the “
clear
right
”
said to be infringed upon
is confined to the encroachment arising from the first applicant’s
ownership of the encroached
upon property. The irksome aspects
alluded to are therefore merely incidental to the matter, although
they are mentioned as being
relevant to the exercise of the court’s
discretion concerning whether the encroachment ought to be removed
or not.
3
Plan
A is dated “
September 2009
”.
4
The
assumed initial demand was not attached
5
The
location of the “
road rails
”
is unclear.
6
The
relevance of the Department’s presence or involvement at the
time was not made clear.
7
This
is a hand drawn plan ostensibly not a formal public document.
8
An
earlier temporary licence dated 10 December 2004 relates to “
ERF
22/08/2, PAIN JERSEY FARM, UMTATA
” (Annexure E).
9
Plascon-Evans
Paints v Van Riebeeck Paints
1984(3) SA 623 (A) at 634 E –
635 C.
10
Smith
v Basson
1979 (1) SA 559
(W)
11
See
Lawsa, Surveying of Land; Volume 14 (1) at par 176.
12
Act
No. 47 of 1937.
13
Lawsa
supra
at par 177.
14
Lawsa
supra
at par 177 and the footnotes cited therein.
15
An
official extract from the deeds office was not provided by the
applicants. Despite the fact that the respondent has not challenged
the authenticity of Plan C, this is not the best evidence of the
diagram. The diagram ought to be supplemented too with reference
to
the Surveyor-General’s survey records in the case of a dispute
such as the present one.
16
These
subdivisions appear to have been endorsed after the original survey
of portion 5. The extent and size of what remains of
the original
plot does not appear on the copy of the diagram furnished by the
applicants.
17
The
first applicant submits that contrary to what the respondent
asserts, the “
tar road
”
on its property does not demarcate the boundary
between its property and the respondent’s “
whatever
that may be
”
but rather “
it
falls wholly within the bounds and extent of Portion 5
”
.
This suggests that the parties are not speaking of the same road.
18
As
an aside it is not clear who lays ownership to this narrow band of
land.
19
Cape
Town Council v Sassin
1912 CPD 578
;
Surveyor-General v Ford
1923
EDL 437.
20
Joh-Air
(Pty) Ltd v Rudman
1980 (2) SA 420
(T)
at 428 – 29.
21
Rand
Waterraad v Bothma
1997 (3) SA 120
(O).
22
Section
29.
23
Section
46.