SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN )
JUDGMENT
Reportable / Not reportable
Case No: 16888/ 2024
Before the Hon. Madam Justice Slingers
Hearing: 5 June 2025
Judgment Delivered: 30 June 2025
In the matter between:
HENDR IK XAVIER BADENHORST N.O First Applicant
TAMARA NICOLA GLICK N.O Second Applicant
ALAN BRYER N.O Third Applicant
CEDRIC KEITH GLICK N.O Fourth Applicant
NADINE GLICK N.O Fifth Applicant
DENISE HEATHER BRYER N.O Sixth Applicant
(in their capacities as trust ees for the time being of
the Tamric Trust T360/92)
and
ADOWA INFRASTRUCTURE MANAGERS [RF] First Respondent
(PTY) LTD
(Registration Number: 2014/124119/07)
GOVERNMENT EMPLOYEES PENSION FUND Second Respondent
REGISTRAR OF DEEDS Third Respondent
CITY OF CAPE TOWN Fourth Respondent
This judgment is handed down electronically by circulation to the parties’ legal
representatives’ email addresses. The date of hand -down is deemed to be 30 June
2025.
___________ _______ ___________________ _________________________ _____
JUDGMENT
__________ _____ ____________________________________________________
SLINGERS J
Introduction
[1] In this application the applicants seek an order declaring the Tamric Trust
(‘the Trust’)1 to be the owner, by acquisiti ve prescription , of a portion of land
measuring 20m². This portion of land is situated between the cadastral
boundary of Erven 1[...]2 and 1[...], Woodstock, Cape Town, to the north of
1 The Trust is an inter-vivos trust which duly registered in terms of the provis ions of the Trust Property
Control Act, Act 57 of 1988 with the Master of the Western Cape High Court with number T360/92.
the southern boundary wa ll as it existed until March 2024 (‘the boundary
wall’).
[2] The application is brought by the applicants in their capacity as trustees of the
Trust and is supported by a founding affidavit deposed to by Cedri c Keith
Glick (‘Glick’) , the fourth applicant.
[3] The application was also supported by an affidav it deposed to by Henry
Rosenbaum (‘Rosenbaum’) , an adult businessman and an affidavit of Judi
Hayes (‘Hayes’) , an attorney and conveyancer.
[4] Hayes has been actively involved in this matter on behalf of the Trust and has
done extensive research and investi gations in the Deeds Office records
regarding the properties involved in this application.
[5] The applicants sought no substantial relief against the third and fourth
respondents, who did not participate in these proceedings. Only the first
respondent filed a notice to oppose and actively opposed the application.
[6] The application is brought in terms of section 1 of the Prescripti on Act, Act 68
of 1969 read with section 33 of the Deeds Registries Act, Act 47 of 1937.
[7] Section 1 of the Prescription Act 68 provi des that :
‘Subject to the provisions of this Chapter and of Chapter IV, a person shall by
prescription become the owner of a thing which he has possessed openly and
as if he were the owner thereof for an uninterrupted period of thirty years or
for a period which, together with any periods for which such thing was so
possessed by his predecessors in title, constitutes an uninte rrupted period of
thirty years.’
[8] Therefore, to succeed with its claim the applicants must establish that it (or its
predecessors in t itle):
(i) possessed the disputed portion of property;
(ii) for an uninterrupted period of thirty years;
(iii) as if it was the owner thereof;
(iv) freely and openly and as adverse users .
Background
[9] The Trust became the owner of 1 […] R[...] Road, Woodstock, Cape Town
situa ted on Erf 1[...]2 measuring 7954m² (‘the property’) on 31 March 1995
pursuant to a written sale agreement concluded between itself and Goodbert
Properties (Pty) Ltd (‘Goodbert’) . Glick represented the Trust during the
conclusion of this sale agreement.
[10] Prior to the Trust’s acquisition of the property and d uring Goodbert’s
ownership thereof , a company known as Graphco Processing (Pty) Ltd
(‘Graphco’) concluded a lease agreement with Goodbert in June 1970 in
terms whereof Graphco would conduct business from the property. At this
time Rosenbaum was the sole shareholder with a controlling interest in
Graphco of which he was the sole shareholder and director and person in
charge of the business .
[11] In 1995 when the Trust acquired ownership of the property, Graphc o
concluded a lease agreement with it and continued to conduct business from
the property until March 2000. Thus, Graphco has been conducting business
from the property from 1970 to 2000.
[12] When Graphco first occupied the property, the boundary wall was alr eady
built and remained in place until Graphco vacated the property. Rosenbaum
had the boundary wall in his direct view al most daily.
[13] Rosenbaum states further that he is not involved in the business of the Trust
or its predecessors.
[14] Adjacent to the south of the property is Erf 1[...] which is registered jointly in
the names of the first and second respondents (‘the respondents’) who
became the owners thereof on 17 March 2022.
[15] When the Trust purchased the property it was separated from Erf 1[...] by the
boundary wall which runs in an east - west direction on the southern boundary
thereof. This boundary wall remained in the same position until its demolition
on 8 March 2024.
[16] Previously the property and Erf 1[...] consisted of a single plot of land. Over
the years this single plot was subdivided into smaller erven. The Trust
submitted that the boundary wall was likely constructed by or at the behest of
Goodbert at a time when it owned the entire property, including Erf 1[...].
[17] From the outset of its ownership of the property the disputed portion of land
was on the Trust’s side of the boundary wall and was practically dealt with as
if it was part of the Trust’s property even though it was registered in the name
of the first respondent.
[18] During late September 202 3 the respondents caused excavation work to be
undertaken. This resulted in the collapse of the majority of the southern
boundary wall with the remainder of the wall being demolished in March 2024
by the respondents.
[19] The parties discovered that the cadast ral boundary bet ween the Trust’s
property and the respondents’ property, being Erf 1[...] was in fact located
between 2.32 and 1.75 m to the south of the southern boundary wall after the
excavation work was undertaken. T he disputed portion of land was found to
be part of the respondents’ property.
[20] The applicants aver that the true owners of the disputed portion of land have
never laid claim thereto until 2023 when the respondents discovered that it
formed part of its Erf. In response, the respondents denied that the applicants
have any personal knowledge on which they could make this averment . This
was the extent and nature of the respondents’ challenge to this assertion.
Merits
[21] The respondents’ challenge to the application centres around the requireme nt
that the Trust (and its predecessors in title) failed to show possession of the
disputed portion of the land ‘as the owner ’ and with the requisite animus
domini inherent in this requirement.
[22] The respondents state that:
‘His observations of the encroac hing wall’s existence do not and cannot
demonstrate that Goodbert possessed the disputed area openly as if it was
the owner thereof.’2
and
‘Crucially, Rosenbaum (and the Trust) fail to address the mental component
of possession required to establish acquis itive prescription . Possession for
the purpose of acquiring ownership by prescription entails control with the
intention of an owner. Rosenbaum, as a tenant to Goodbert who only
observed the enc roach ing wall, cannot speak to (and does not speak to) the
mental requirement of acquisitive prescription. So, Rosenbaum’s evidence
does not demonstrate that Goodbert possessed, in the legal sense, the
disputed area.’3
[23] The respondents did not challenge nor dispute that the Trust (and Goodbert
as its’ predecessor i n title) was in physical possession of the disputed portion
of the property for an uninterrupted period of thirty years being from at least
1970 until 2024, and that this possession was exercised freely and openly.
[24] The possession referenced in section 1 of the Prescription Act, Act 68 of 1969
has been said to constitute civil possessio n containing both an objective and a
2 Paragraph 19 of the answering affidavit, page 163
3 Paragraph 20 of the answering affidavit, page 163
subjective element consisting of physical possession coupled with animus
domini .4
[25] It is not known exactly when the boundary wall was erect ed nor is it known
whether it was intentionally erected to serve as a boundary between the
property and Erf 1[...].
[26] It is known that the boundary wall remained in the same position from at least
1970 to March 2024 when it was demolished. It is further kno wn that the
disputed portion of land was part of a parking lot used exclusively by the Trust
since its acquisition of the property in 1995 and by its predecessor in title
before then.
[27] Furthermore, it is known that the owners of the property (the Trust’s
predecessor/s in title) limited and controlled access to the disputed portion of
the property which was fenced off.
[28] In respect of possessing the propert y as it if were the owner, Glick states the
following:
‘72. The possession by the Trust and its predecesso rs over the disputed
portion was exercised openly and freely. No agreement ever existed
between the registered owners and the Trust. To the best of my
knowledge, such an agreement also did not exist between the
registered owners and the Trust’s predecess ors.’
[29] The first respondent challenges these averments on the basis that Glick had
no personal knowledge and presented no direct evidence that:
‘50.1 Godber t recognised the registered ownership rights over the disputed
area;
50.2 Godbert possessed the dispu ted area with animus domini;
4 Morgenster 1711 (Pty) Ltd v De Kock NO and Others 2012 (3) SA 59 (WCC)
50.3 Adowa’s predecessors in title “challenged” Goodbert’s possession;
50.4 Goodbert possessed the disputed area openly and freely;
50.5 Goodbert and Adowa’s predecessors in title neve agreed to allow
Goodbert to encroach on (w hat is today) Adowa’s property; and
50.6 all owners “simply accepted the encroaching wall as the boundary
wall.”’
[30] The applicants submitted that when the Trust purchased the property, it
possessed and exercised the right as the owner thereof over the full e xtent of
the area withing the boundary walls, including the disputed portion of land for
an uninterrupted period of more than 30 years. In responding to this
allegation the first respondent state s that it cannot comment on how the Trust
used the disputed area prio r to the respondents ’ purchase of Erf 1[...].
Nevertheless, the first respondent den ies that the Trust has proven that it or
Goodbert possessed the disputed portion of property with the requisite
animus domini for a period of 30 years.
[31] Animus dom ini consists of both a subjective and an objective element. In
respect of the subjective element, the respondents argue that there is no
direct evidence hereof . Consequently, the applicants failed to show that
Goodbert, as the Trust’s predecessor, posses sed the disputed portion of land
as the owner thereof , notwithstanding its undisputed physical possession
because it was not shown that Goodbert had the prerequisite subjective
intention of an owner.
[32] The respondents are correct that no direct evidence was presented in respect
of the subjective element of animus do mini in respect of Goodbert. However,
uncontested evidence has been presented that, since at least 1970, the
Trust’s predecessor in title exercised exclusive control and possession of the
disputed portion of the land, that access thereto was limited and controlled by
the Trust ’s predecessor in title and the use thereof was for the benefit of the
Trust’s predecessor in title.
[33] It is uncontested that the Trust purchased the property from Goodbert at a
time when the boundary wall was still erected. It is uncontested that the
boundary wall was in the same position it had been since at least 1970. It is
uncontested that the disputed portion of land was on Goodbert’s side of the
boundary wall . It is unc ontested that Goodbert’s property, which included the
disputed portion of land, was sold to the Trust.
[34] It may be inferred from these uncontested facts that the disputed portion of
land was dealt with and regarded as part of Goodbert’s property allowing it to
to deal with as it wished, including selling it to the Trust. The sale of an asset
is distinctively an inherent right which resides primarily with the owner who is
ordinarily the only entity who has the right to sell and/or dispose of it. It could
be inferred that Goodbe rt considered the d isputed portion of land as part of its
property with which it could de al with as it wishe d. Although this is not the only
inference which could be drawn from the uncontested facts, it is the more
probable inference .5 Thus, Goodbert used the disputed portion of land as if it
was the owner thereof . This possession would fulfil the requirements of
possession civilis.6
[35] The respondents deny that this is the only inference which can be drawn but
do not deny that it is a reas onable inference. The applicants need not show
that it is the only inference which can be drawn but simply that it is the more
plausible inference which could be drawn . This follows from the fact that the
applicants need not discharge their onus beyond r easonable doubt but simply
on a balance of probabilities.
[36] On the uncontested fact s it may be accepted that Goodbert was openly an d
peaceably performing positive acts on the disputed portion of property and
that it was using it adverse to the true owner.7 Goodbert not only incorporated
the disputed portion of land into a parking lot which was fenced off from the
respondents but he also sold the property which included the disputed portion
5 Grancy Property Ltd and Another v Gihwala and Others 2025 (2) SA 76 (SCA)
6 Campbell v Pietermaritzburg City Council 1966 (2) 674 SA (N)
7 Bisschop v Stafford 1974 (3) SA 1 (A)
of property to the Trust. These acts constituted visible acts of app ropriation
so patent that the owner, with reasonable care could have observed it. Thus,
Goodbert and thereafter the Trust possessed the disputed portion of the land
openly.8
[37] In the circumstances, I am satisfied that the Trust (or its predecessors in title )
physically possessed the disputed portion of property for an uninterrupted
period of thirty years as if it was the owner thereof in a manner which was free
and open as adverse users to the registered owner thereof.
[38] Therefore, I am satisfied that the appl icants have made out a case for the
relief it seeks as the Trust’s together with its predecessor in title fulfilled the
requirements of section 1 of the Prescription Act 68 of 1969.
Supplementary affidavits
[39] After filing its replying affidavit, the applican t brought an application in terms of
Rule 6(5)(e) for leave to file a supplementary affidavit. This application was
not opposed.
[40] In the supplementary supporting affidavit filed, the applicants argue d that it
matters not whether the Trust’s predecessor ful filled the requirements for
acquisitive prescription as it itself had been in possession of the disputed
portion of property from 31 March 1995 and had itself been in possession
thereof for thirty years. In the supplementary answering affidavit, the
respo ndent avers that the Trust lost possession of the disputed area on 26
June 2024 on which date the respondent constructed a fence excluding the
Trust from possession of the disputed area.
[41] Therefore, it had not been in possession of the disputed portion of l and for the
prescribed period of time .
8 Morgenster 1711 (Pty) Ltd v De Kock NO and Others 2012 (3) SA 59 (WCC)
[42] Furthermore, the Trust knowingly informed the court that it had regained
possession in circumstances where it knew it had not.
[43] In light of the finding s made in paragraph s 37 and 38 above, it need not be
determined whether the Trust lost possession of the property on 26 June
2024 and whether it itself was in possession of the disputed portion of land for
an uninterrupted period of 30 years.
[44] In the circumstances, I make the followin g order:
(i) the Tamric Trust (T360/92) is declared the owner, by acquisitive
prescription, of the portion of land depicted in the land surveyor
certificate as the “encroachment area’ annexed to the founding affidavit
of Cedric Keith Glic k as CKG3’ which is situated between the cadastral
bounda ry of erven 1[...]2 and 1[...], Woodstock, Cape Town, to the
north of the southern boundary wall as it existed until March 2024.
(ii) The costs of the application shall be borne by the first respondent and
shall be on scale B.
_______ __________ ________
HM SLINGE RS
JUDGE OF THE HIGH COURT
Appearances
For the applicant: FA Ferreira
Instructed by: Hayes Attorneys
For respondent: P Far lam SC and E C ohen
Instructed by: ENS Inc.