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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, PIETERMARITZBURG
CASE NUMBER: AR195/2024
In the matter between:
ANTHONY ZWELEBANZI MNCADI FIRST APPELLANT
SUSAN MNCADI SECOND APPELLANT
And
MKHUNJULWA OBED LANGA RESPONDENT
JUDGMENT
P C BEZUIDENHOUT J:
[1] Respondent brought an application in terms of section (1) of the Prescription Act
no. 68 of 1969 to be declared the registered owner of a property known as Erf 7[...]
N[...], Registration Division GU, Province of KwaZulu -Natal. The matter was opposed
by Appellants and was heard by Khuzwayo AJ. Appellants now appeal against the
order granted by the court a quo that Applicant (Respondent herein) be declared to be
the owner of the property described as Erf 7[...] N[...], Registration Division Gu, Province
of KwaZulu -Natal and that First and Second Respondents (Appellants herein) are
directed to pay the costs of the application. The appeal is brought with leave of the
court a quo.
[2] The facts in this matter are mainly common cause and not complicated. It is
common cause that Respondent has resided in the said property since 1981. It is also
not disputed that during his occupation he made various alterations to the said property
and has paid all the municipal accounts which were in his name. From 1981 until 2018
Appellants sh owed no interest in the property and Respondent and his family openly
resided therein and were in peaceful possession of the property. Their possession of
the said property only came to be disputed during 2018 when on 25 September 2018 an
eviction application was brought by Appellants. An order to vacate the said premises
was granted in the Ngwelezana Magistrate Court on 19 February 2019 when there was
no appearance on behalf of Respondent. Respondent , when he became aware of the
said order , brought an application for the recission thereof which was heard in the
Ngwelezana Magistrate Court and was opposed by Appellants. In his application for
recission of the eviction order he raised the issue of acquisitive prescription in that he
had undisturbed possession of the property for over 30 years from 1981 until 2018
when the application for eviction was brought.
[3] First Appellant in his affidavit filed in the magistrates’ court contended that the
said property was allocated to him in 1969 and he lived there until 1977. The property
was leased to one Xulu during 1977 and that the deed of grant dated 5 March 1981 was
then granted to them.
[4] It however appears that this was cancelled by the Registrar of Deeds Ulundi on 5
March 1984 and that on 8 March 2019 it was changed to ownership. On 8 March 2019
the surname on the Deed of grant in respect of ownership unit for residential purposes
was amended in terms of section 41(b) of Act 47 of 1973 by the G in the surname
Mngadi being changed to C as is spelt by Appellants.
[5] On 15 November 2019 , in a lengthy judgment, the learned magistrate in
Empangeni rescinded the eviction order that had been granted and set out various time
limits for filing of affidavits. This appears to have not been done.
limits for filing of affidavits. This appears to have not been done.
[6] The application papers relating to the eviction application in the magistrates’
court were attached to the founding affidavit filed by Respondent in the High Court
application brought by him for an order to acquire the property by way of acquisitive
prescription. In the said application at page 90 an annexure “ML4” was attached which
indicated that the said property was transferred from First Appellant to Respondent on 9
October 1981. This was disputed by Appellants who also contended that they had
never signed the said declaration of transfer. From what is set out in paragraph 4 above
it appears no transfer of the property took place.
[7] Respondent based his application on the fact that he has resided in the property
for 37 years from 1981 to 2018 before the application for eviction was brought. That he
still resides therein; that it is his primary residence since 1981 and accordingly in terms
of the Prescription Act 68 of 1969 h e acquired the said property by means of
prescription. He also referred to annexure “NL4” which sets out a declaration of transfer
of ownership on 9 October 1981.
[8] In the answering affidavit , Appellants contended that Respondent did not have
the necessary intention to possess the property. First Appellant also denies that the
document annexure “NL4” was signed and completed by him transferring the said
property. It is contended that Applicant was relying on a contractual obligation for his
application to acquire ownership of the property. It is admitted that certain alterations
were made to the property and it is denied that he is entitled to acquire the said
property.
[9] No replying affidavit was filed by Respondent and it also appears that no heads
of argument were filed by Respondent.
[10] The judgment by the court a quo dealt with the arguments raised that the matter
be referred for oral evidence, the manner in which Respondent took occupation of the
property and the allegation that such was without the consent of First Respondent. It
also dealt with the answering affidavit of Respondent relating to annexure “NL4” which
also dealt with the answering affidavit of Respondent relating to annexure “NL4” which
was the transfer of ownership. The law of prescription was dealt with and set out that
the possession need not be bona fide. It would also not have assisted by referr ing the
matter for oral evidence as the 30 years occupation was not in dispute. There was
nothing to substantiate that Respondent forcefully took occupation of the said property.
It was further found that there was no need to file a reply ing affidavit and that the non
filing of heads of argument is no reason to dismiss the application. It is common cause
that the property was occupied by Respondent for over 30 years and that it was openly
and without force. That the sale agreement was denied and thus did not apply.
[11] During argument i t was submitted on behalf of Appellants that Respondent did
not have the intention to occupy the said property. Further , that he relied upon a sale
agreement and that he did not occupy the property himself.
[12] It was submitted on behalf of Respondent that there was no agreement to occupy
the said property, that it was a blank form, that there was no misdirection by the court a
quo and that it had been set out clearly that he occupied the property for over 30 years
and accordingly was entitled to the relief which he claimed and which was granted.
[13] Section 1 of the Prescription Act 68 of 1969 provides as follows:
“Subject to the provisions of this chapter and of chapter IV , a person shall by
prescription become the owner of the thing which he 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 period for which such thing was so possessed by
his predecessors in title, constitutes an uninterrupted period of 30 years.”
[14] To succeed with an application for acquisitive prescription an applicant must
allege and prove:
(a) Civil possession, possession with the intention to possess and control as owner.
This Respondent did by occupying it openly and by making alteration s to the
property.
In Joles Eiendom Pty Ltd v Kruger and Another 2007 (5) SA 222 (C) paragraph 28 it
held:
“In order to establish ownership of land through acquisitive prescription the
plaintiff had to prove that it had possessed such land openly and as if he were
the owner thereof for an uninterrupted period of 30 years. The possession
required for the purposes of prescription is possession civilus, being the physical
control of the property accompanied by the intention of the owner, the animus
domini.”
This interpretation was confirmed by the Supreme Court of Appeal in Kruger v J oles
Eeindom & Another 2009 (3) SA 5 (SCA) at paragraph 13 of the judgment and that the
making of improvements to the said property is the conduct of someone who holds the
land in in question as if he were the owner thereof.
(b) Possession openly for an uninterrupted period of 30 years. This is undisputed as
a period of 37 years had already elapsed when the application for eviction was
brought.
There is nothing in the papers that during this period while occupying the p roperty
openly and freely Respondents occupation was challenge d in any way. Ba rker N.O. v
Chadwick 1974 (1) SA 461 (D) and Bischop v Stafford 1974 (3) SA 1 (A)
[15] It is therefore apparent from the papers that Respondent proved that he had
occupied the said property openly for a period of over 30 years before there was any
intervention by Appellants challenging his possession of the said property. He
accordingly occupied the property openly, freely and without any force form 1981 until
2018 and thus for a period of 37 years.
[16] In granting leave to appeal it was held that another court could come to a
different decision as a result of Respondent’s occupation of the property for over 30
years and therefore qualify to obtain the property by acquisitive prescription but that the
alleged purchase of the property and the sale document that was part of the court
papers could affect it even though the sale agreement was not persisted with.
[17] The said s ale agreement was challenged by Appellants who denied that they
had ever signed it or agreed to it . This in my view does not assist Appellants. The fact
remains Respondent has resided in the said property for over 30 years without any
interference from Appellants and made alterations to the property. It is also not
explained at all in the affidavit filed by Appellants why they never contacted Respondent
about the said property during this period , only indicating that they let out the property
until 1977 and then gives no explanation further as to why they never did anything
further in relation to the property thereafter. The alleged sale of the property was also
not persisted with as set out above.
[18] Respondent, in my view, had proved the requirements for acquisitive
prescription. T he judgment of the court a quo dealt with all the factors in detail and
there was no misdirection or error in the said judgment. Respondent is accordingly
entitled to the relief which was granted by the court a quo.
Order
The appeal is dismissed with costs.
P C BEZUIDENHOUT J.
I agree.
MOSSOP J.
It is so ordered.
RADEBE J.
JUDGMENT RESERVED: 6 JUNE 2025
JUDGMENT HANDED DOWN: 1 August 2025
COUNSEL FOR APPELLANTS: Ms SINGH
Instructed by: Veronica Singh & Associates
Kwadukuza
Ref: VSINGH/MAT19542
Email: reception@vsingh.co.za
c/o: Nhlapho Attorneys
Pietermaritzburg
COUNSEL FOR RESPONDENTS: T GOPAL
Instructed by: Legal Aid South Africa
Empangeni
Tel: 035 792 4949
Email: LondekaN2@legal-aid.co.za
Ref: Ms JL Ngcbo
c/o: Durban Local Office
Tel: 031 3043290/031 3040100
Ref: T Gopa/X866929121