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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case Number: 20909/2022
In the matter between:
JOHANNES PETRUS DU BOIS N.O. First Plaintiff/ Excipient
GIDEON THEODORUS GELDENHUYS N.O. Second Plaintiff/ Excipient
MARNE GELDENHUYS N.O. Third Plaintiff/ Excipient
In their capacities as trustees of the BASIE
GELDENHUYS TRUST (I[...])
and
THE SKI CLUB OF SOUTH AFRICA Defendant / Respondent
Date Heard: 24 October 2023
Date delivered: 09 May 2024
JUDGMENT DELIVERED ELECTRONICALLY
Nziweni, J
Introduction and Background
[1] This is an interlocutory application by the plaintiff s [the excipients] who raise a
number of exceptions against the defendant’s counterclaim. But, insofar as the
defendant’s plea, no exception has been raised.
[2] For ease of reference , I shall refer to the parties as the plaintiff s and the
defendant. The application is strenuously opposed by the defendant.
[3] This application has its genesis in an action of unlawful possession of immovable
property taken by the plaintiffs against the defendant. To the averment of unlawful
possession of the piece of land, the defendant has pleaded and entered a
counterclaim.
[4] In the main action the plaintiff s aver that the defendant is in unlawful possession
of part of the immovable property of the Basie Geldenhuys Trust. The part of the
land in question is located on the slopes of the Matroosberg Mountains.
[5] The defendant claims that it has acquired a personal servitude to access and use
the farm by virtue of section 2 (1) of the Prescription Act, Act 18 of 1943 (the
Act”), and section 6 of the Act. Consequently, it prays for a declaratory order to
the effect that it has personal servitude in perpetuity.
[6] The plaintiffs are cited in their capacities as trustees of the Basie Geldenhuys
Trust. On the other hand, t he defendant is the Ski Club of South Africa, a
voluntary association. The Basie Geldenhuys Trust is the owner of the Farm
Spekrivier (the farm), 1063, 001 hectares in extent.
[7] By way of background, t he plaintiffs’ complaint against the defendant’s pleading
is based upon grounds that are divided into two main parts. Shortly, the
exception grounds are: (a) the counter claim fails to disclose a cause of action; or
(b) lacks a material allegation necessary to sustain a cause of action for the relief
claimed; (c) alternatively, the counterclaim purport to formulate a claim based on
a cause of action which is bad in law. Under part B the ground of exception is
mentioned as vague and embarrassing.
[8] I have already mentioned in passing the plaintiffs’ complaints, as far as the
defendant’s pleading is concerned. However, it seems prudent and necessary
that before turning to the details of each party’s submission s; I shall cite part of
the defendant’s plea and counterclaim for convenience of reference.
[9] In the defendant’s plea the following is averred:
“3.1 Since 1935, the defendant has:
3.1.1. accessed a portion of the land now forming Farm Spekrivier No.
499, as referred to in paragraph 5 of the particulars of claim (Spekrivier);
3.1.2. using the accessed portion Spekrivier for of hiking, skiing, overnight
accommodation and related activities of the defendant; and
3.1.3. has installed certain structures and improvements at the accessed
portion of Spekrivier, including a ski-lift and certain buildings.
3.2. A diagra m showing the portion of Spe krivier tha t the defendant has
accessed and used as set out above is attached marked “P1”.
3.3 The defendant has enjoyed the aforesaid access and use for continuous
period of at least 30 years between 1957 and the date of this plea, and
has done so:
3.3.1. Without the use of force;
3.3.2. Openly;
3.3.3 Nec precario; and
3.3.4. As though it were entitled to such access and use.
[10] In the defendant’s counterclaim the prayer is phrased as follows:
“WHEREFORE the defendant requests the Court:
1) To declare that the defendant has a personal servitude in perpetuity to access
and use the portion of the land forming part of the Farm Spekrivier . . . , as
indicated in annexure P1 to this counter clai m, for purposes of hiking, skiing,
overnight accommodation and related activities of the defendant.” Own
emphasis.
[11] So far as the defendant’s counterclaim is concerned, it may be helpful here to
quote the full grounds upon which the exceptions are based.
[12] In respect of the first exception [Failure to disclose a cause of action ], as
mentioned earlier, two areas of complaint were identified.
They are stated as follows:
“1. In paragraph 3 of the Defendant’s Counterclaim it is alleged
that the Defendant has acquired a personal servitude of access
and use over a portion section forming part of the Plaintiff’s
immovable property (portion of the Fa rm Speksrivier N o. 499”)
by virtue of provisions of section 2 (1) of the Prescription Act, 18
of 1943 and /or section 6 of the Prescription Act, 68 of 1969
(‘the running of acquisitive prescription”).
2. The Defendant’s Counterclaim (as formulated in prayer (i) of
the pleading) is directed at the obtaining of a declarator to the
effect that the Defendant is possessed of “a personal servitude
in perpetuity to access and use” portion of the Farm Spekrivier
No. 499 as further alluded in the said prayer.
3. In terms of South African law personal servitudes are not
perpetual, but subject to a source of extinguishment that does
not apply to pr aedial servitude s. In instances here juristic
persons such as the Defendant are the beneficiaries of a
personal servitude (such as the one claimed by the Defendant)
the servitude terminates when the juristic person- beneficiary of
the personal servitude is dissolved or after 100 years, whichever
occurs first.
4. In the premis es, the pleading fails to disclose a cause of
action or lacks material allegations necessary to sustain a cause
of action for the relief claimed in prayer (i) thereof, alternatively
purport to formulate a claim based on a cause of action which is
bad in law.”
[13] In respect of the second exception the complaint is phrased as follows:
“5. In paragraph 3 of the Defendant's Counterclaim, as read with paragraph of
its Plea, it is alleged that the Defendant has acquired a personal servitude
of access and use over portion and use over portion of the Farm
Spekrivier No. 499 through the running of acquisitive prescription in that it
had enjoyed access and use (in the manner pleaded) “ for a continuous
period of at least 30 years between 1957 and the date of the plea” – which
period ( taking into account that the Plea was dated 1 February 2023)
extends over well-nigh 66 years.
6. The Plaintiffs repeat their contentions as set out in paragraph 3 above and
in particular plead that, as a best -case scenario, whatever personal
servitude the Defendant could have acquired by acquisiti ve prescription
would in law terminate upon expiry of a period of 100 years from the date
upon which prescription had run its course (“the inception date of t he
personal servitude claimed”).
7. To the extent that the Defendant has failed to allege what the inception
date of the personal servitude claimed is, the pleading fails to disclose a
cause of action or lacks material allegations necessary to sustain a cause
of action for the relief claimed in prayer (i) thereof, alternatively, purport to
formulate a claim based on a cause of action which is bad in law. . .
8. In the alternative to the Second Cause of Complaint . . .
8.1. Repeat the contents of paragraph 5 and 6 above;
8.2. Plead that the failure on the part of the Defendant to allege when
precisely over the 66 year time span (alluded to in paragraph 5 above) the
inception date of the personal servitude claimed by the Defendant (which
in law can only be of limited duration) is supposed to have been, the
pleading is rendered vague and embarrassing within the meaning of Rule
23 (1).
[14] I have had the benefit of the heads of arguments from counsels and also oral
arguments and I have been immensely assisted by them. The parties’
submissions were comprehensive. It is, of course, almost impossible to
condense all the submissions of the parties into few paragraphs. That does not
necessarily mean that some of the party’s submissions are not relevant in this
case. However, I have ende avoured to summarise the parties’ submissions as
follows.
Plaintiffs’ submissions
[15] As I have already indicated , t he first exception is founded inter alia on the
argument that the defendant ’s claim for a personal servitude in perpetuity to
access and use portion of the farm , is bad in law. It is submitted that in terms of
South African law , the defendant’s claim in its current form is completely
unsustainable.
[16] It is further contended on plaintiffs’ behalf that personal servitude s are not
perpetual but are subject to a source of extinguishment that does not apply to
praedal servitudes. It is also asserted on behalf of the plaintiffs that when a
juristic person such as the defendant are the beneficiaries of a personal
servitude, the personal servitude terminates when the juristic person -beneficiary
of the personal servitude is dissolved or after 100 years, whichever occurs first.
[17] Mr de V La Grange developed these submissions in the course of his argument.
He submitted that t he defendant’s failure to plead the inception date of the
servitude, so the argument continues, renders the counter claim vague and
embarrassing. In addition, the plaintiffs’ counsel strenuously urged that the
defendant has failed to allege the inception date of the personal servitude. It is
further the contention of the plaintiff s that in terms of the law, personal servitude
cannot extend beyond a period of 100 years.
The defendant’s submissions
[18] It was vehemently contended on behalf of the defendant that the legal argument
raised by the plaintiff s can be argued at trial. Hence, it is argued that the
exception procedure is not appropriate for the legal argument raised.
[19] It is further argued that an exception procedure is designed to obtain a decision
on a point of law which will dispose of the case in whole or in part. And if it is not
to have that effect the exception should not be entertained.
[20] So far as the complaint related to a cause of action is concerned, i t is contended
that a cause of action is properly pleaded by the defendant. And this is so
because, the defendant asserts its right based upon a personal servitude and it
has pleaded the material facts upon which such claim is based.
[21] It is asserted that in addition to that, the defendant has prayed for “further and or
alternative relief” in its counterclaim. Thus, the defendant, notwithstanding the
fact that it prayed of its right in perpetuity, it is entitled, depending upon evidence
led, to a lesser relief [period of servitude].
[22] According to the defendant, the plaintiff s take issue with the extent of the relief
claimed by the defendant rather than the cause of action underpinning such
relief.
[23] Furthermore, it is contended on behalf of the defendant that the counter claim is
not vague and embarrassing as it sets out the required averments. According to
the defendant , for the proposition that this Court should declare that the
defendant has a personal servitude in perpetuity, it is sufficient that the defendant
has alleged the following:
1. possession as if owner;
2. possession for uninterrupted period of 30 years; and
3. possession was exercised openly.
[24] It is argued on behalf of the defe ndant that the date of inception is neither here
nor there. Accordingly , it is argued that the re is no oblig ation to plead the
inception date, and it is submitted that this is a matter that is to be efficiently
addressed at trial through evidence.
[25] It is also contended on behalf of the defendant that the defendant’s allegation in
its plea which is cross referenced in the counterclaim, is not vague. According to
the defendant, what stems out of the averments made is that defendant has
enjoyed the access and use for a continuous period of at least 30 years, between
1957 and the date of the plea.
[26] Mr Landman illustrated his argument by arguing that the inception date is
pleaded as being 1957 and that the word “between 1957 ” cannot reasonably
mean anything other than the date of inception of the claimed possession . So,
the argument continues that the start date for adjudication is pinned at 1957.
[27] It is the defendant’s contention that if there are minor blemishes and unradical
embarrassments caused by a pleading those can and should be cured by further
particulars and the plaintiffs are at liberty to ask for further and better particulars if
it deems itself entitled to such information.
Condonation in respect of the second objection
[28] First and foremost, the defendant’s challenge, insofar as the second objection,
was addressed to the fact that the exception is not properly before this Court. It is
asserted that the notice to remove the cause of complaint was served outside of
the specified time limit stipulated in rule 23 (1). The defendant did not vigorously
pursue the failure to comply with the rule. In fact, it was submitted that if the
Court does find that the defendant would not be prejudiced by the non-
compliance with the rule, it should condone the same.
[29] This Court was not referred to any prejudice caused by the failure to comply with
the rule. In respect of prejudice Mr de V La Grange contended that there was no
prejudice. In this matter, there is no evidence of actual prejudice.
[30] Hence, I take the view that, the plaintiffs’ failure to comply with the Rules of Court
is virtually not going to be prejudicial to the defendant. In the circumstances,
there is, therefore, no reason why this court cannot condone the failure by the
plaintiffs to comply with the requirements of rule 23 (1).
Evaluation
[31] Turning now to the Court’s evaluation. I consider it unnecessary for this judgment
to recite the statutory provisions of the relevant rule. It is enough to observe that
the plaintiffs’ exceptions concern the provisions of rule 23.
Part A of the compliant; Does the counterclaim disclose a cause of action or lacks
material allegations necessary to sustain a cause of action for the relief claimed in
prayer (i)?
[32] Insofar as this particular complaint is concerned, the question before this Court is
not whether defendant’s counterclaim is factually meritorious but rather, whether
the counter claim discloses a cause of action or lacks certain particulars that are
necessary to sustain a cause of action.
[33] Rule 18 (4 ) provides that every pleading shall contain a clear and concise
statement of material facts upon which the pleader relies for his or her claim.
Therefore, a party cannot withhold facts that it intends to prove. There is thus a
requisite standard to be met by a pleading. Hence, amongst others, the purpose
of a pleading is to spell out with clarity a party’s case and set out the facts to
justify the allegations the party is making. A pleading also informs a party of the
case it must meet.
[34] It is settled that a claim must disclose a cause of action. What this boils down to
is that a claim that does not disclose a cause of action or lacks averments which
are necessary to sustain an action is excipiable.
[35] A broad reading of the plaintiffs’ exception encompasses that, the defendant
brings forward a claim that it is not entitled to make use of . I have already
indicated that according to the plaintiffs the counterclaim of the defendant is
certain to fail as it is bad in law.
[36] It is true that, it is not for this Court on a motion to reach a decision as to the
defendant’s chances of success. In any event, the strength of the party’s case is
not relevant as far as an application for exception, is concerned. This Court, thus,
has to determine as to whether the defendant’s counterclaim presents a case
which is fit for adjudication.
[37] Generally, at this stage of the proceedings , a party should allege facts that make
his alleged claim to be plausible. In a plethora of cases such as Buchner and
Another v Johannesburg Cons Investment Co Ltd 1995 (1) SA 215, it has been
stated that a pleading which pro pounds the party’s own conclusion and opinions
instead of material facts is defective and does not set out a cause of action. In
the Buchner matter, supra, it is succinctly stated that it would be wrong for a court
to endorse a party’s opinion by elevating it to a judgment without first scrutinizing
the facts upon which the opinion is based.
[38] The defendant’s pleading discloses that the defendant accessed the farm in 1935
and used it for hiking, skiing, overnight accommodation and related activities. It is
further asserted that the defendant also installed certain str uctures and
improvements on the portion of the farm. In paragraph 3.3 of the defendant’s
plea, it is averred that the defendant has enjoyed the access and use for a
continuous period, openly, without the use of force, nec precario and as though it
were entitled to do so.
[39] Assuming the averment stated in the defendant’s plea and counter claim are
true, it means that the defendant has been accessing and using a portion of the
farm for at least 30 years . In paragraph 3 of the counterclaim the defendant
states that in light of the aforesaid facts, it acquired a personal servitude to such
access and use by virtue of the Pres cription Act. Paragraph 3 of the counter
claim is not a statement of fact but a conclusion of law.
[40] Interestingly enough, the basis for the defendant’s counter claim as pleaded can
be summarised as personal servitude of access and use which accrued by
acquisitive prescription. And bearing in mind that t he defendant seeks an order
that would declare the personal servitude perpetual. In this case , plainly the
defendant’s counterclaim is an action to declare personal servitude perpetual.
Intriguingly, the nature of the claim that the defendant seeks is that it is entitled to
claim a relief in perpetuity.
[41] For what it is worth , in this matter, it is common ground between the parties that
the servitude right claimed by the defendant is a personal servitude. A number of
authorities state that a personal servitude , unlike a preadal servitude, cannot be
perpetual. This extensive body of authority reflects that a servitude cannot by the
common law be granted to juristic person for more than 100 years. See
Johannesburg Municipality v Transvaal Cold Storage (1904) 3 TS 739 (3
September 1904) 730; see also CG Van Der Merwe “Can personal servitudes be
worded in such a way that they are perpetual in nature and thus freely
transferable and transmissible?” 2013 TSAR 340; where Van Der Merwe opines:
“There may be instances in which our courts could be persuaded to create
new law to endow certain personal servitudes with transferability and
transmissibility. However , only certain personal servitudes should be
earmarked for such treatment, and this should happen only where, as in
the case of mineral rights , there is a clear commercial or other need for
such recognition. All in all, it should be kept in mind that the recognition of
a personal servitude of a perpetual nature would burden landed properties
to such an extent that commerce in such properties would be stilted. In
the event that , as in the case of mineral rights, the need for recognizing
new perpetual rights becomes patent, the courts should consider whether
it would not be a better option to recognise a new limited rea l rights, if
necessary, as being of a sui generis character instead of forcing them into
the mould of personal servitudes”
[42] JC Sonnekus “Opvolging van plaaslike owerhede en onbedagte gevolge vanuit
die matriële sakereg” 2003 TSAR 141, Sonnekus stated the following:
“Die Suid Afrikaansereg, soos ook reeds die gemenereg, oderskei tussen
erfdiensbaarhede en persoonlike diensbaarhede aas voorbeelde van
beperktesaaklike regte binne die breë indeling van serwitute . . .
Persoonlike diensbaarhede is dus in beginsel nie lang durig van aard nie .
. .
Van die kant van die eienaaar van die dienendegrondstuk gesien,beteken
dit dat die beperking op sy bevoeghed e weens ń persoonlike
diensbaarheid minstens nie ew igdurend kan wees nie. Dit word beperk
tot hetsy die uitdruklike termynbepaling waaraan diensbaarheid gekoppel
is of maksimaal in die geval van ń na tuurlike person, tot met die afsterwe
van die diensbaarheids-reghebbende, welke van die twee gebeure eerste
sou aanbreek . Indien die reghebbende ń regs persoon is, word
gemeenregtelik aanvaar dat die mksimum duurte van ń persoonlike
diensbaarheid 100 jaar sou wees . . .
Die beginsel het reeds meer dere kere in die gerapporteerde Suid –
Afrikaanse regspraak neerslag gevind . . .”
[43] I distill from the above authorities , inter alia , that as the law now stands , a
personal servitude by a juristic person has a life span and cannot be perpetual. It
seems to me that in applying these principles to the present case, it is quite clear
that the relief sought in the counterclaim, in the circumstances of this case , is not
sustainable. In accordance with the above cited authorities, it is evident that the
relief sought herein by the defendant may not be granted by a court. Thus, the
relief sought by the defendant presents a legal problem for the defendant. I do
not think there is any merit in defendants' position, nor ha s it cited any precedent
for it. Hence, Mr de V La Grange , cannot be faulted for contending that the
defendant is claiming something which it cannot claim in law. As stated by
plaintiffs’ counsel, it is, I am afraid, quite impossible for any court to take a
quantum leap in law that is not permitted.
[44] It is further submitted on behalf of the plaintiff s that the defendant cannot aim for
the moon and hope that even if they miss, they’ll land among the stars . So, the
argument continues, the defendant cannot claim that it pleaded the right facts,
but those facts cannot be sustained by the prayer. This much was stated in
Stephen v Liepner 1938 WLD on page 35, when the court stated the following:
“I have come to the conclusion that the measure of damages claimed by
the plaintiff is untenable on the allegations in the declaration. It was ,
however, that on the present allegations evidence of damage resting on
any special circumstances could be objected to on the ground that they
are not covered by the declaration . . . [I]t was held that if a special
damage is claimed it must be stated with particularity in the pleading s . . .
[O]n the allegations in the declaration, the plaintiff is claiming damages
which are not legally supportable and I see no reason why the defendant
need wait until the trial in order to establish this point.”
[45] So far as I can a ssess, the very same principle is also applicable when a party
seeks a relief that would declare a personal servitude to be perpetual. It seems
to me that, the counterclaim fails to allege the key allegations of facts upon which
such claim may be granted. In other words, there is an irreconcilable conflict
between the facts pleaded in the counterclaim and the prayer sought. In the
circumstances, i t was thus necessary for the defendant to plead or set out
specifically as to under what circumstances is the relief that it is seeking
[servitude in perpetuity] is predicated. At the very least, the plaintiffs are entitled
to know upon what grounds the defendant claims servitude in perpetuity. The
point is of particular importance in this case because of the relief sought by the
defendant. Thus, clear grounds have to be alleged to support the claim sought.
The prayer of further and alternative relief can never replace the importance of a
pleading. Equally, the prayer of further and alternative relief cannot cure a
defective pleading. It is clear that a serious want of particularity in a pleading can
be cured by an amendment.
[46] I am disposed to agree with the plaintiffs’ contention that the facts pleaded would
not sustain the extreme prayer the defendant seeks which is perpetual servitude
based on personal servitude. Moreover, as mentioned earlier, the relief sought in
the defendant’s counterclaim is contrary to South African law.
[47] It was argued on defendant’s behalf that the trial court is best equipped to deal
with the issue of servitude. But what is the point of taking to trial an issue that is a
non-starter, as it is bad in law.
[48] Additionally, it was argued on defendant’s behalf that th is case calls for the
development of common law. Clearly, there should be factual allegations
justifying a departure from the law as it stands. The authors of Amler’s
Precedents of Pleadings state that a party that wishes to rely on a developed
rule, it will be necessary to plead the anticipated or required legal rule.
Part B of the complaint; Vague and embarrassing
[49] It should be observed that I am mindful of the fact that the inception date of a
personal servitude , by a juristic person, is a necessary averment to plead .
Moreover, it bears noting that i t is settled now that a personal servitude does not
convey or vest to the holder of such right in perpetuity.
[50] The central issue to resolve in this complaint is whether it is vague and
embarrassing for a lack of a necessary averment.
[51] According to the submissions made on behalf of the defendant , it is clear from
the defendant’s plea and counter claim that the inception date is reflected as
between 1957 and the date of the defendant’s plea. I do not find this argument
persuasive. There are no sufficient facts set out in the defendant’s plea or
counterclaim to warrant such an inference. It bears noting that the plaintiffs
should not be left to speculate as to the legal and factual basis for the
defendant’s counterclaim.
[52] As mentioned previousl y, a pleading or a claim must provide sufficient notice of
the facts claimed and the issues to be tried . A party cannot subject a court to a
fishing expedition. Hence, a party has to plead its case with adequate facts. To
this end, full particulars of claim containing necessary dates, should be stated in
a pleading . It is strenuously argued on plaintiff s’ behalf that in light of the
defendant’s claim, the inception date is a necessary averment.
[53] It is apparent from the defendant’s counterclaim that it is asserting an entitlement
to part of the farm. However, clause 3.3 of the defendant’s plea does not state as
to when the inception date of the personal servitude was. It merely states that the
defendant has enjoyed the access and use for a continuous period of at least 30
years between 1957 and the date of the plea.
[54] I am disposed to agree with the contention that, it is not possible to discern from
the defendant’s pleading as to when the alleged conduct of obtaining the
personal servitude occurred as there is no specific date provided. The inception
date of the personal servitude is important because it is the factual and a legal
basis for the claim of personal servitude. This is so because, a personal servitude
has got a lifespan. Therefore, it is critical to know whether the per sonal servitude
is extant. Here it is apparent that t he inception date should have been alleged by
the defendant.
[55] After reading the defendant’s plea and the counter claim it is plain and obvious
that there are two dates contained in the plea, one is ‘1935’, and the other one is
stated as ‘between 1957 and the date of the plea’. In my mind, given the fact that
the claimed personal servitude is not based upon an agreement, but on
prescription; the inception date is a pertinent and a necessary averment .
Consequently, s o far as any date is of importance, the " inception" date is
paramount.
[56] This is so, because, as correctly pointed by the Mr de V La Grange, that personal
servitude is not perpetual. The inception date determines every feature of a
personal servitude that can be affected by a date. Thus, amongst others the two
dates [mentioned in the defendant’s plea] create an ambiguity as to whether the
inception date should be calculated from 1935 or from1957. Put differently, they
create an ambiguity as to whether the lifespan of the alleged personal servitude
began from 1935 or 1957.
[57] As it was noted earlier, i t is contended on the defendant’s behalf that it is plain
from the plea that the inception date is from 1957 to the date of the plea. But this
argument incorrectly conflates the issue of inception date and date of acquisitive
prescription. Additionally, in the context of this matter, I am of the firm view that
this contention is without merit because it is apparent that it simply ignores the
other date [1935] averred in the defendant’s plea [as the date upon which the
defendant began to have access on the land in question ]. A plain reading of the
pleadings does not lead to the conclusion that the defendant is arguing.
[58] As noted above, the inception date for the personal servitude is not specifically
pleaded, even though at the outset of the defendant’s plea it is mentioned that
the defendant began to have access in 1935. In any event, the year 1935 is also
not clearly pleaded as the inception date of the personal servitude. In the context
of this case, the year 1935 cannot fairly be read to encapsulate the inception
date as the plea does not contain any hint, even in general terms, that the year
1935 is the inception date.
[59] The embarrassing part of the counter claim arises from the fact that the plea
states that “the defendant has enjoyed the aforesaid access for a continuous
period of at least 30 years between 1957 and the date of its plea .” This
allegation is a conclusory statement that fails to detail the facts underlying it.
[60] As mentioned above, year 1935, also appears on the defendant’s plea as the
year upon which the defendant claims that it accessed the portion of the farm.
For instance, if the court accepts the inception date of the personal servitude as
1935, it will then mean that the lifespan of the personal servitude would probably
end in 2035. In fact, the circumstances of the two sets of dates that appear in the
plea muddies the inception date issue more.
[61] It is crucial that a claim based on personal servitude through acquisitive
prescription must be pleaded with specificity . This is so because, the dates
mentioned, the words used, and their connotation are a vital feature in any
evaluation of the claim . Thus, the allegations made should set forth facts
sufficient to inform the other party of the clai m it is facing . In other words, the
defendant in this case, must allege sufficient facts so that the plaintiffs are
reasonably aware of how the defendant managed to attain the personal servitude
right he claims upon their farm. This obligates a party making a claim to plead all
material facts applicable to its claim.
[62] Evidently, a claim of a right of personal servitude based on acquisitive
prescription must amongst others, on its face, specifically identify the location of
the servitude, the type of the servitude claimed, how the servitude came into
being, when did the servitude commence and who is claiming the servitude.
[63] What is more, in the case of Ardconnel Investments (Pty) Ltd (1988) 2 SA 12 (A),
it is stated inter alia, that it is the registration of the servitude in the title deed of
the servient tenement that constitutes the servitude in law.
[64] Given the fact that the defendant failed to plead the “inception date” nor allege
facts supportive of that; the question then is, what date is the “inception date”?
[65] Further, it is also not clear from the defendant’s pleading why the year 1957 is
specifically chosen or decided upon . A fair reading of the defendant’s plea
compels the conclusion that the year 1957 appears to be a random selection to
calculate the 30 years of use and access [for purposes of acquisitive
prescription]. This is so because, the defendant’s plea reveals that for some time
prior to 1957 the defendant claims to have had use and access to a portion of the
farm.
[66] In deciding the inception date of the personal servitude , the 30 year period
calculated in terms of the Act, has got nothing to do with the inception date or the
lifespan of the personal servitude. The period for acquisitive prescription is a
separate concept from inception of personal servitude.
[67] Obviously, the date of acquisitive prescription occurs subsequent to the inception
date of the personal servitude. Hence, the assertion made on defendant’s behalf
that it is plain from the pleading that the inception date is from 1957, creates
more vagueness and confusion. It should be noted that the submission on its
own reveals lack of clearness.
[68] It should be within the knowledge of the defendant to be able to st ate with clarity
the inception date of the personal servitude , claimed by a juristic person and
based on acquisitive prescription. In the circumstances, it is difficult to define or
discern the inception date of the personal servitude.
[69] This is a typical case of imprecise pleading. It is not much of a stretch to imagine
that imprecise pleading leads to trial by ambush. Hence, it cannot be allowed. In
terms of our law, a party is not allowed to conceal material facts until the hearing
of the trial. A party cannot wait until the trial is underway to reveal an unpleaded
material factual averment.
[70] In this case, the absence of the words in the pleading evincing the inception date
of the personal servitude, makes it unavoidable to conclude that the pleading is
vague and embarrassing. This conclusion is fortified by the consideration of the
plainly incorrect assertion made on defendant’s behalf that the inception date of
the personal servitude is between 1957 and the date of the plea.
[71] It must then be accepted that the pleading in its current form , causes even the
defendant to conflate the dates , as it is ambiguously worded . The question then
is which date is the date of inception. In the circumstances, it is l ittle wonder that
Mr de V La Grange, on plaintiffs’ behalf, posed a proper question during his oral
submission as to how would a court determine when the alleged right lapses.
[72] In the circumstances, the plaintiff s would be left to speculate as to the inception
date of the personal servitude. In light of the authorities cited by the plaintiffs, it is
evident that t he inception date is the factual and legal basis for the claim of
personal servitude. Even more so, in the circumstances of a counter claim where
it is alleged that the occupation of the defendant is unlawful.
[73] Clearly, in this case, the plaintiffs would not be able to respond properly to the
defendant’s counter claim.
[74] With all intents and purposes, where particulars of a claim are necessary; full,
and sufficient particulars of the claim , including dates if applicable, sh ould be
stated in the pleading. It was contended on defendant’s behalf that the plaintiff s
are free to apply for further particulars should it require such.
[75] Undeniably, the plaintiffs should not be prejudiced in being able to respond
properly to the pleading of the defendant’s counterclaim. Likewise, it makes no
sense that the trial should be further delayed by a further application for
particulars that should have been in the first place contained in the pleading.
[76] Clearly, if the plaintiffs would be required to apply for further particulars and won’t
be able to properly respond to the pleading of the other party, that would attest to
the fact that the defendant’s counterclaim does not contain the necessary
particulars of the claim.
Conclusion
[77] Looking at this matter, in my view it is self -evident that there is merit in the
complaints raised by the plaintiff s. In the result, I am quite satisfied that the
plaintiffs’ exceptions ought to be allowed.
[78] The next issue I propose to address is whether in the circumstances, the
defendant’s counter claim stands to be dismissed. Notwithstanding th ese
pleading deficienc ies, I consider it appropriate that the defendant should be
granted an opportunity to amend. After all, in great majority of cases where an
exception is upheld a party is given leave to amend.
[79] I also conclude by expressing my sincere apology for the time that it took me to
bring out this judgment.
[80] On the basis of the aforegoing factors, I make the following order:
1. The exceptions are upheld with costs;
2. The defendant is given leave to amend its counterclaim within 20 days of
this order;
3. Should the defendant fail to amend its c ounter claim within the stated
period, the plaintiffs are granted leave to apply on the same papers, duly
supplemented, if necessary, for the dismissal of the defendant’s counter
claim.
NZIWENI, J
JUDGE OF THE HIGH COURT
APPEARENCES:
For the Applicant : Adv A de V La Grange
Instructed by : Du Bois Attorneys
Ref : Charles van Breda
For the Respondent : Adv F W Landman
Instructed by : STBB Smith Tabata Buchanan Boyes
Ref : AMcP/CLFWA201800