Joles Eiendom (Pty) Limited v Kruger and Another (A332/06) [2007] ZAWCHC 9; 2007 (5) SA 222 (C) (1 March 2007)

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[2007] ZAWCHC 9
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Joles Eiendom (Pty) Limited v Kruger and Another (A332/06) [2007] ZAWCHC 9; 2007 (5) SA 222 (C) (1 March 2007)

23
A332/06
In
the matters between:
joles
eiendom (Pty) Limited
Appellant
and
johan
bloem kruger
First
Respondent
registrar
of deeds
Second
Respondent
judgment:
delivered 1 March 2007
Griesel
J:
Introduction
This
appeal concerns a common passage forming the boundary between two
adjoining properties, erven 548 and 3765, situated in Dorp
Street,
Stellen­bosch.
1
The appellant (first defendant in the court a quo) owns erf 548,
whereas the first respondent (plaintiff in the court a quo) owns
the
adjoining erf 3765. The second respondent in this appeal (second
defendant in the court a quo) is the Registrar of Deeds, who
played
no active part in these pro­ceedings. (For convenience, I refer
to the appellant herein as
‘the defen­dant’
and to
the first respondent as
‘the plaintiff’
.)
In
terms of a servitude registered against the title deeds of the two
properties, each party has a reciprocal right of ‘common
use’ of
the passage. In this litigation, the plaintiff claimed that the
defendant’s right of servitude over the plaintiff’s
half of the
passage had lapsed through non-use for more than 30 years. He
claimed, furthermore, that he (the plaintiff) had acquired
ownership
through acquisitive prescription of the defendant’s half of the
passage (represented by the points NEFM on the annexed
diagram), as
well as of a further part of the passage, referred to at the trial
as ‘the extended passage’ (represented by the
points MFGHJ on
the diagram).
The
claims were opposed by the defendant, but the court a quo
(Woodland AJ) held in favour of the plaintiff with regard to
the issue of extinctive prescription in respect of the servitude.
The trial judge also found that the plaintiff had acquired ownership
of the extended passage through acquisitive prescription. With the
leave of the trial court, the defendant appeals against these
orders.
Factual
background
The
plaintiff, Mr Johan Bloem Kruger, conducts a business known as
Wynland Superette en Wynhandelaar
on the premises owned by
him at erf 3765, situated at 52–54 Dorp Street in Stellenbosch.
The plaintiff’s father (
Kruger Snr
) purchased the property
during the 1950’s. The plaintiff was a small boy at the time.
Kruger Snr conducted a café and fish shop
on the property. After
initially assisting his father in the business, the plaintiff on 16
March 1967 concluded a written agreement
with Kruger Snr in terms of
which he purchased erf 3765 and the business. The plaintiff took
occupation of the property on 1 March
1967, but transfer was only
registered in his name on 22 July 1976, the delay being due to High
Court litigation between himself
and Kruger Snr.
The
servitude in question was first created in 1929. In the plaintiff’s
title deed it is recorded that his property is subject
to and
entitled to the benefit of,
inter alia
, the following special
condition (clause B(1)):
‘
That
the passage shewn on the Western boundary on the diagram of Lot D
this day transferred to Frederik Karl Viana (No. 6930) shall
be for
the common use of the said Lot D and of the land hereby conveyed.’
(Lot
D, it appears, is now erf 548 while ‘the land hereby conveyed’ is
the property now owned by the plaintiff, namely erf 3765.)
In the
defendant’s title deed, the special condition, although not
identically worded, is to the same effect, namely that ‘the
passage
… shall be for the common use of the [two properties in question]’.
The
common passage is 33 Cape Feet (10,39 metres) long and 3 Cape
Feet (0,94 metre) wide. The passage is entered from
Dorp Street
through a lockable wooden door at point E and is bounded by the
buildings on both sides. The centre line of the passage,
extending
between point E and point F, is the boundary between the two
properties. The passage originally provided common access
to the
respective back­yards, where an out­building housed the
out­side lavatories of the two properties and straddled
the
boundary between the properties.
During
1966, the then owner of erf 548, one Scheiffer, undertook building
works on his property, including the construction of a
2,7 metre
high wall along his western boundary. This wall runs in a straight
line along the boundary from point M to point
J. In the process, a
small rectangular portion of erf 548, designated by points FGHJ on
the diagram, was closed off from erf 548,
thus physically becoming
part of the backyard of erf 3765. The wall also had the effect of
preventing access to erf 548 from Dorp
Street along the passage.
During
1968 the plaintiff, in turn, undertook certain alterations and
extensions to the building on his property. As part of the
extensions, the outside wall of the new kitchen was constructed in a
northerly direction approximately along the eastern boundary
of his
property. This wall, however, encroached to a very limited extent on
erf 548 between points G and H on the attached diagram.
The effect
of these renovations was to extend the actual passage area bounded
on the western side by the plaintiff’s new building,
by more than
4 metres. (As mentioned earlier, this extended passage is
represented by points MFGHJ on the diagram.) At the
same time, the
passage and extended passage were upgraded by the plaintiff and a
cement surface was put down.
Matters
were brought to a head during 2001, when the defendant took transfer
of erf 548, together with the adjacent erven 546 and
547. The
defen­dant commenced development of an office and shop complex
on erf 548 and the adjacent properties, effecting extensive
renovations in the process. This included the construction of a door
in the wall of the building on erf 548, thereby again providing
access from erf 548 to the passage. The door is situated
approximately midway along the passage between points N and M. The
plaintiff,
however, adopted the attitude that the servitude
registered in favour of the defendant’s property had been lost by
extinctive
pre­scription and, furthermore, that he (the
plaintiff) had acquired by prescription that part of erf 548 which
is the subject
of the servitude in his favour, together with the
extended passage. In support of these claims, the plaintiff alleged
that, since
1967 and for a period of more than 30 years, he had been
in uninterrupted possession and occupation of the passage and the
extended
passage. He said that such possession had been exercised
nec clam,
nec vi,
nec precario
and, since 1
December 1970,
2
openly and as if he were the owner.
The
defendant took issue with these contentions. It denied that the
plaintiff had had sole and uninterrupted possession and occupation
of the passage for more than 30 years as if he were the owner. The
defendant stated in its plea that the plaintiff used the passage
in
terms of a registered servitude and, moreover, that he (the
plaintiff) had acknowledged the defendant’s rights in respect
of
the servitude registered against erf 548 and those of its
pre­decessors in title. The defendant also adduced evidence at
the trial to establish that its predecessors in title and their
employees and tenants had in fact used the passage during the course
of the relevant 30-year-period. Through such use, so it was
contended, the running of prescription was interrupted.
The
issues before us on appeal are therefore – (a) whether or not
the servitude had lapsed; and (b) whether or not the
plaintiff
had acquired owner­ship of the extended passage though
prescription.
Interpretation
of the servitude
With
regard to the first issue, the trial judge interpreted the servitude
in question to be one of passage or footpath (
iter
), finding
that the servi­tude ‘was intended to provide a means of
pedestrian access to each of the properties from Dorp Street
by way
of the passage or walkway’.
3
He could find nothing in the language of the servitude ‘to suggest
that a servitude of any kind other than a foot passage was
intended.’ He found support for this interpretation in one of the
definitions of the noun ‘passage’ in
The New Shorter Oxford
English Dictionary on Historical Principles
, namely ‘[t]hat by
which a person or thing may pass; a road, a park, a route, a
channel’.
4
On the evidence, he found that the defendant’s predecessors in
title had, since 1966, not used the passage as a footpath or as
a
means of access to the backyard of erf 548, with the result that the
servitude had lapsed through non-use for the prescriptive
period,
i.e. 30 years.
5
On
appeal, counsel for the defendant submitted that the trial judge
adopted an unduly narrow interpretation of the servitude by
restricting it to a right of footpath. In my view, there is merit in
this criticism. It appears from the judgment that the trial
judge
focused his enquiry exclusively on the word ‘passage’ and
attached to it
one
particular dictionary meaning. This
approach tends to ignore the reality that, like most words and
phrases, the word ‘
pas­sage’
does not have a single
‘ordinary’ or ‘literal’ meaning. Where such word appears in
a docu­ment, therefore, the meaning
thereof will necessarily
depend on the context in which it is used, its interrelation to the
language of the document as a whole
and the nature and purpose of
the transaction as it appears from such document.
6
The
context in which the word ‘
p
assage’
appears in this case is as part
of a special condition (servitude) in a title deed where the rights
and obli­gations of the
respective owners of two adjoining
properties are set out. The word refers to an area lying between the
two properties. In that
context, it is clear to my mind that the
primary meaning of the word ‘passage’ must be sought in one of
the other definitions
of the word (from the same dictionary), namely
‘a corridor or alley leading to or giving access to an apartment,
garden, etc’.
7
The word ‘passage’ must, in other words, be interpreted as
synony­mous with ‘passage­way’, which is ‘a corridor
or other narrow passage between buildings or rooms’.
8
This interpretation also corres­ponds with the Afrikaans
translation, ‘gang’ or ‘steeg’, which were the terms used
by
the plaintiff in the course of his evidence in the court a quo with
reference to the passage. I accordingly agree with the submission
on
behalf of
the defendant that the word ‘passage’ is
merely descriptive of the land that is to be subject to use by the
owners of both properties;
in other words, the word does not define
the use to which the land is to be put, but rather describes the
area that forms the subject
matter of the servitude.
The
more crucial term in the servitude, in my view, is the expression
‘common use’, which was not further described or defined
in any
way. In my view, this means that the passage may be used by both
owners for any lawful purpose – having regard to the
nature and
situation thereof, namely a narrow passageway between two adjoining
commercial buildings in an urban setting – and
provided, of
course, that the servitude is exercised
civiliter modo
. In
addition to the right of footpath (
iter
), other permissible
uses of the passage would include urban servitudes, such as
ius
stillicidii aver­tendi
(the right to pass off one’s
rainwater onto the ground of another);
9
ius stilli­cidii recipiendi
(the right to receive the
rainwater coming from another’s land);
10
ius cloacae
(the right to have a drain lying on or coming out
on the ground of another);
11
and so on.
Extinctive
prescription
Against
the foregoing background, I now turn to consider whether the
defendant’s predecessors in title did in fact use the passage
during the relevant period. I bear in mind in this regard that the
onus rests on the plaintiff to prove on a balance of probabilities
that the servitude had
not
been exercised for the
prescriptive period.
12
The
defendant adduced a substantial body of evidence from a variety of
witnesses to the effect that its predecessors in title and
their
employees and tenants had in fact used the passage during the course
of the relevant 30-year-period,
inter alia
, for storage of
crates, bottles and bicycles; by con­ducting sewerage from the
defendant’s property through a pipe to a main
sewerage pipe
running under­ground down the centre of the passage; by
rainwater emanating from erf 548 flowing down a gulley
in the
passage; and by tele­phone lines serving the defendant’s
property emanating from a box installed against the plaintiff’s
wall in the extended passage. The trial judge dealt with this
evidence as follows:
13
‘
It
was not in my judgment sufficient if the passage was used for some
other purpose such as the storage of goods. That would not
constitute the exercise of the owner’s registered servitudal
right.
I am nevertheless satisfied on the evidence that the
section of the passage lying on the plaintiff’s land was not used
for this
purpose
.
… The fact that a sewerage pipe
emanating from the first defendant’s property might have been
connected to the main sewerage
pipe running along the passage –
which possibly encroached on the plaintiff’s land – also does
not in my view change matters.
Similarly, rain water from erf 548
being conducted down a gully in the passage or a telephone box
situated on the wall of the plaintiff’s
building and telephone
wires traversing the passage to the first defendant’s property,
would be similarly
irrelevant
. Again, this would not
constitute the exercise of the servitudal right contained in the
special condition. The facts mentioned
may, in the right
circumstances, constitute servitudes such as the right to install
artificial pipes on the servient tenement –
the urban praedial
servitude known as
servitus
cloacae mittendae
. These, in my view, are not the rights
which are encompassed in the registered servitude which burdens the
plaintiff’s property.
It does not of course follow that because
the first defendant or its predecessors in title might have had
quasi possessio
in
the form of a sewerage pipe traversing the plaintiff’s property
that the servitudal right inherent in a walk­way was exercised.’
[emphasis added]
It
follows from my interpretation of the servitude, as set out above,
that I find myself in respectful dis­agree­ment with
the
approach adopted by the learned trial judge in this passage. It
follows, furthermore, that he erred, in my view, in dis­regarding
the defendant’s evidence of other uses of the passageway as
‘irrele­vant’.
As
a fallback position, counsel for the plaintiff argued that the
defen­dant has in any event not furnished credible evidence
that
its predecessors in title had used the passage in the ways described
above. In this regard, counsel relied on the underlined
passage in
the above quotation from the judgment in support of a sub­mission
that the trial judge must be under­stood to
have rejected the
evidence of the defendant’s witnesses in its totality. I am unable
to agree that this was indeed the intention
behind the learned
judge’s almost dismissive comment. It will be noted that the trial
judge qualified his finding by stating
that he was ‘satisfied on
the evidence that
the section of the passage lying on the
plaintiff’s land
was not used for this purpose’ (i.e.
storage of goods) (my emphasis); he did not find that
no
part
of the passage was used for that purpose (or any other purpose) by
the defendant. The servitude in favour of the defendant’s
property
is registered in respect of the
whole
passage between points
E and F; not just in respect of the half lying on the plaintiff’s
side of the passage. In my view, it
was not necessary for the
defendant to show that its predeces­sors in title specifically
used
the section of the passage lying on the plaintiff’s land
in order to show that they had exer­cised the servitude: a
praedial servitude being indivisible cannot be partially acquired
or
lost.
14
Reverting
to the question of credibility, the evidence adduced
on
behalf of
the defendant was subjected to intense scrutiny and
criticism by counsel for the plaintiff and we were invited by
counsel to reject
such evidence. Without having seen or heard the
witnesses, I am not in a position to find that the plaintiff and his
witnesses
should be believed or that the defendant’s witnesses
should be disbelieved. Having regard to the onus, I am accordingly
unable
to find on a balance of probabilities that the plaintiff has
discharged the onus of proving that the defen­dant’s
predecessors
in title had not used the passage in
any
of the
permissible ways discussed above.
15
Abandonment
As
an alternative basis for his conclusion that the servitude had
lapsed, the trial judge found that the construction of the wall
by
Scheiffer during 1966 amounted to a ‘deliberate and express act of
abandonment by Scheiffer of his right to use the passage
in
accordance with the servitude registered against erf 3765’.
16
The
first problem with this alternative approach is that the issue of
abandonment was never raised on the pleadings nor was it canvassed
at the trial with any of the witnesses. Abandonment of a servitude,
like waiver of a right, is not lightly presumed and must be
clearly
proved by the party relying on such abandon­ment or waiver. At
the trial, the plaintiff did not attempt to discharge
this onus.
Realising this lacuna in his case, the plaintiff’s counsel
belatedly – as part of his supple­men­tary written
sub­missions on appeal – brought an application for amend­ment
of his particulars of claim to raise aban­donment
or waiver of
the servitude by the defendant’s predecessor in title during 1966.
This application was strenuously resisted by
the defendant.
Although
a court of appeal is in principle empowered – as part of its wide
powers in terms of s 22(
b
) of the Supreme Court Act 59
of 1959 – to grant an amendment of the pleadings, this power will
be sparingly exercised and an
amendment will only be allowed in
cases where the court is satisfied that the other side will not be
prejudiced thereby. In order
to satisfy this test, the party seeking
an amendment on appeal must ordinarily satisfy the court of appeal
that the issues sought
to be raised have been thoroughly canvassed
in the court below.
17
As mentioned above, this has not happened in the present case. In
the circum­stances, the objection to the late amendment must
be
sus­tained. It follows that the trial judge, in my respectful
opinion, erred in finding in favour of the plain­tiff
on this
alternative basis.
Even
if the proposed amendment were to be granted, however, the evidence
in any event does not establish abandonment or waiver of
the
servitude on the part of the defendant’s predecessors in title.
The mere fact that such predecessors in title may have abandoned
the
right to use the passage as a walkway or footpath, does not justify
the conclusion that they thereby simul­taneously abandoned
all
other permissible uses of the passage in terms of the servitude. As
pointed out above, a praedial servitude is indivisible
and cannot be
partially acquired or lost.
18
In
the circumstances, it follows that there were no grounds for
ex­punging the servitude, with the result that paragraphs 1
and
2 of the order fall to be set aside.
Acquisitive
prescription
As
for the second issue identified above, it was held, with regard to
that part of the passage which is affected by the servitude
(NEFM),
that the plaintiff exercised his right to use the passage as a
servitude-holder and that this was something that the defendant
and
its predecessors in title had no right to prevent. On the evidence,
the trial judge accordingly found that the plaintiff had
not proved
that he had used that part of the defendant’s land as if he were
the owner thereof.
19
These findings of the trial judge are, in my view, clearly correct
and they were not assailed before us by way of a cross-appeal.
The
extended passage (MFGHJ), however, was not affected by the
servitude. In this regard, the trial judge held that the plaintiff
possessed this area openly and as if he were the owner for the
requisite period and that he had accordingly acquired by
prescription
ownership of that portion of the defendant’s land.
20
In
order to establish ownership of land through acquisitive
pre­scrip­tion, the plaintiff had to prove that had
possessed
such land ‘openly and as if he were the owner thereof
for an uninterrupted period of 30 years’.
21
The possession required for the purposes of prescription is
possessio civilis,
being the physical control of the property
accompanied by the intention of an owner, the
animus domini
.
22
As
mentioned earlier, the extended passage is not affected by the
servitude. It physically became part of the back yard of the

plaintiff’s property when Scheiffer constructed his wall during
1966, thereby isolating it from the rest of his property. Not
only
did the extended passage physically and logically become part of the
plaintiff’s property; he also controlled access to
the passage by
means of the access door on Dorp Street. He (as well as his tenants)
at all times had a key to the access door,
which was kept locked
most
of the time. On the evidence as a whole, I am satisfied
on a balance of proba­bilities that the plaintiff had, for the
requisite
prescriptive period, exer­cised effective physical
control of the extended passage. The fact that some of the
defendant’s
predecessors in title and/or their employees may also
occasionally have had access to that portion of the passage does not
detract
from the plaintiff’s effective control thereof, nor did it
serve to interrupt prescription.
As
for the mental element,
animus domini
, the plaintiff’s
evidence was criticised
on behalf of
the
defendant and it was argued that the plaintiff drew no distinction
in his own mind between the portion of the passage that was
subject
to the servitude and the extended passage, which was not so subject.
I do not regard this criticism of the plaintiff’s
evidence as
convincing. It appears from the evidence that the plaintiff regarded
the
whole
passage as his property. As has been shown, he was
mistaken with regard to the portion which is subject to the
servitude and any
animus
he might have had in that regard
would have been legally ineffectual – just as in the case of a
lessee or a usufructuary. This
impediment, however, did not exist
with regard to the extended passage. In any event, as pointed out by
Miller J in a similar
situation in
Campbell v
Pieter­maritzburg City Council
,
23
‘it is safer, by far, to rely on the external mani­festations
of his state of mind than on his own clumsy attempts at verbal
reconstruction of his state of mind many years ago’.
In
the instant case, the evidence shows that the plaintiff made
perma­nent improvements to the extended passage. He also made
permanent improve­ments to his own building during 1968, some of
which encroached onto the extended passage.
Prima facie,
this
is the conduct of someone who holds the land in question as if he
were the owner. There is no evidence to suggest that any
of the
defendant’s predecessors in title took any steps to prevent these
actions on the part of the plaintiff; in fact, there
was
no
indication anywhere to indicate to the uninformed outsider that the
extended passage formed part of erf 548 and not of erf 3765.
I
am accordingly satisfied that the trial judge was fully justified in
holding that the plaintiff had discharged the onus of establishing
that he had acquired ownership of the extended passage by
prescription.
Costs
It
follows from the above conclusions that the defendant has achieved
some success on appeal. It cannot be described as insubstantial.
On
the other hand, the plaintiff has successfully defended portion of
the judgment in his favour. In these circumstances, it would
not be
fair, in my view, to dub either the plaintiff or the defendant as
the loser in the appeal. To order one party to pay the
costs of the
other would not be appropriate. It would be fairer to order the
parties to pay their own costs of the appeal.
24
As
for the costs of the trial we are, in the light of the variation of
the order of the trial court, obliged to consider this aspect
afresh. The plaintiff originally approached the court with a claim
comprising three separate but interlinked components. He was
successful, after this appeal, in respect of one of them, which did
not constitute the main aspect of his claim. In fact, I venture
to
suggest that, had ownership of the extended passage been the sole
issue between the parties, it is improbable that the plaintiff
would
have embarked on this litigation. In these circumstances, I am of
the view that it would be fair to adopt the same approach
with
regard to the trial costs as was done in respect of the costs of
appeal, namely to order the parties to pay their own costs.
Conclusion
In
conclusion, it remains for me to deal briefly with a matter that was
raised with counsel during argument before us. One of the
defences
pleaded by
the defendant was that the
plaintiff had acknowledged the rights of the defendant (and its
predecessors in title) in respect of
the servitude;
25
furthermore, that the plaintiff accepted transfer of his property
‘publicly and unequivocally, subject to and in recognition
of
first defendant’s part of the passage and first defen­dant’s
servitude to which this matter relates’.
26
This defence – although mentioned in passing in the judgment
27
– was not pertinently dealt with by the court a quo, nor was it
raised in the defendant’s notice of appeal or its heads of
argument as a substantive ground of appeal. When asked by the court,
during argument before us, whether she still relied on that
defence,
counsel for the defendant replied in the affirmative. In response,
counsel for the plaintiff ob­jected to this line
of argument,
submitting that a point not taken in the notice of appeal cannot
ordinarily be taken on appeal. In the event, we reserved
the right
of counsel for the plaintiff to submit supplementary written
argument to deal with the issue after judgment had been
reserved.
Supplementary written sub­missions by counsel for the plaintiff,
together with a brief reply
on behalf of
the
defendant, have now been filed, for which we are indebted to
counsel.
It
is clear from the authorities to which we have been referred that a
court of appeal may, in certain circumstances, consider a
point not
taken in the notice of appeal – especially where it concerns a
point of law. The proper approach in this regard was
succinctly
summarised by Innes JA almost a century ago in
Cole v
Government of the Union of SA
:
28
‘
If
the point is covered by the pleadings, and if its consideration on
appeal involves no unfairness to the party against whom it
is
directed, the Court is bound to deal with it. And no such unfairness
can exist if the facts upon which the legal point depends
are common
cause, or if they are clear beyond doubt upon the record, and there
is no ground for thinking that further or other
evidence would have
been produced had the point been raised at the outset.’
Although
the issue now under consideration was raised in the defen­dant’s
plea in the terms quoted above,
29
and although the issue was also canvassed with the plaintiff during
cross-examination,
30
the fact is that the issue has, to this day, not been properly
raised in the notice of appeal (as amended) filed
on
behalf of
the defendant, nor was it fully argued before us.
It appears from various authorities, furthermore, that the issue is
by no means
free from difficulty. Despite common law authority to
the effect that mere acknowledgment by a plaintiff of a defendant’s
title
has the effect of interrupting acquisitive prescription,
31
this view has been the subject of cogent criticism,
inter alia
by the ‘father’ of the 1969 Prescrip­tion Act, Prof J C de
Wet,
32
as well as by Prof C G Van der Merwe,
33
both of whom require that there should, in addition, be acquiescence
(
berusting
) in the situation. In the circumstances, I am loath
to base my judgment on this defence raised by the defendant and I
prefer to leave
the issue open.
Order
For
the reasons stated above, I would issue the following order :
1. The
appeal succeeds in part, to the extent that paragraphs 1, 2 and 5 of
the order of the court a quo are set aside.
2. Each
of the parties is ordered to pay his/its own costs of the trial as
well as of the appeal.
B
M Griesel
Judge
Traverso
DJP:
I agree. It is so ordered.
J
H M Traverso
Deputy
Judge President
Ndita
J:
I agree.
T
C Ndita
Judge
1
The
position of the passage, together with the relevant points referred
to in the judgment, is illustrated on a diagram prepared
by the
parties, which was annexed to the judgment of the court a quo and is
likewise annexed to this judgment for ease of reference.
The diagram
is based on the Surveyor General’s diagram No 8288/60. (Record Vol
7 p 620)
2
When
the Prescription Act 68 of 1969 (
the
1969
Prescription Act
)
came into operation.
3
Para
13.
4
Id.
5
Para
16.
6
See
Coopers
& Lybrand & Others v Bryant
[1995] ZASCA 64
;
1995
(3) SA 761
(A) at 767I–768E;
Ridon v Van der Spuy and Partners (Wes-Kaap) Inc
2002
(2) SA 121
(C) at 136C–D.
7
The
Shorter Oxford English Dictionary on Historical Principles
(3ed, 1975 reprint). See also
MSN
Encarta Dictionary Online
sv
‘passage
–
… corridor or pathway: a corridor in an enclosed area or a
path enclosed on both sides’:
http://encarta.msn.com/dictionary_/passage.html
(accessed on 6 February 2007).
8
Concise Oxford English
Dictionary
(10ed 2002)
sv
‘passageway’
.
9
De
Groot 2 34 10–12; Voet 8 2 13.
10
De
Groot 2 34 13–14; Voet
loc
cit
.
11
De
Groot 2 34 24; Voet 8 2 14.
12
Section 7(1)
of the 1969
Prescription Act provides
:
‘
A
servitude shall be exting­uished by prescription if it has not
been exercised for an uninterrupted period of thirty years.’
(The common law
contains similar provisions. See
Bisschop v Stafford
1974 (3)
SA 1
(A) at 7D–E.)
13
Paras
16 & 17.
14
Dreyer
v Letterstedt’s Executors
(1865) 5 Searle 88
at 98.
15
Cf
R
v Dhlumayo & Another
1948 (2) SA 677
(A) at 700; 706 para 13.
16
Para
18.
17
Erasmus
Superior
Court Practice
(1994 with loose-leaf updates, Service 26) at A1-59; Herbstein &
Van Winsen
The
Civil Practice of the Supreme Court of South Africa
(4ed, 1997) 914–5.
18
See
footnote above.
19
Paras
22 – 23.
20
Paras
24 – 25.
21
Section
1 of the 1969
Prescription Act. I
do not regard it necessary for
present purposes to consider the provisions of the 1943
Prescription
Act separately
.
22
21
Lawsa (1
st
Reissue, 2000)
sv
Prescription
para 127, 128. See also
Glaston
House (Pty) Ltd v Cape Town Municipality
1973
(4) SA 276
(C) at 281D–F; C G van der Merwe
Sakereg
(2de uitg, 1979) at 275 and authorities referred to in n 447.
23
1966
(2) SA 674
(N) at 679F–G
24
Cf
Independent
Newspapers Holdings Ltd & Others v Suliman
[2004]
3 All SA 137
(SCA) para 65.
25
Plea
para 4.2.3, Record Vol 1 p 24.
26
Plea
para 5.2 Record Vol 1 p 24.
27
Para
12.
28
1910
AD 263
at 272, quoted with approval in
Paddock Motors (Pty) Ltd v Igesund
1976 (3) SA 16
(A) at 23D–F. See also Erasmus
Superior
Court Practice
(1994 with loose-leaf updates, Service 26) at B1–358 and cases
referred to in footnotes 3 and 4.
29
See
para above.
30
Record
Vol 2 p 139.
31
See
eg Voet 44 3 9;
Paarl
Municipality v Colonial Government
(1906) 23 SC 505
at 527–8;
Pratt
v Lourens
1954 (4) SA 281
(N) at 282E;
Lawsa
op cit
para 134.
32
Gauntlett
(Ed),
Opuscula
Miscellanea
(Butterworths 1979) at 93 para 36.
33
Op cit
at 281. See also Henckert
Die
Animus
Domini-
vereiste
by Verjaring
1986
Responsa
Meridiana
138–143.