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[2019] ZASCA 70
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Stoffberg NO and Others v City of Cape Town (1325/2017) [2019] ZASCA 70 (30 May 2019)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1325/2017
In
the matter between:
ZULMIRA FEDELIA
STOFFBERG NO FIRST
APPELLANT
NICOLAAS EUVERHARDUS
PHILLIPUS STOFFBERG
NO SECOND
APPELLANT
MARTHINUS STOFFBERG
NO THIRD
APPELLANT
NICOLAAS EUVERHARDUS
PHILLIPUS
STOFFBERG FOURTH
APPELLANT
MARTHINUS
STOFFBERG FIFTH
APPELLANT
and
THE CITY OF CAPE
TOWN RESPONDENT
Neutral
citation:
Z F
Stoffberg NO & others v City of Cape Town
(1325/2017)
[2019] ZASCA 70
(30 May 2019)
Coram:
Ponnan, Tshiqi, Van
der Merwe and Schippers JJA and Eksteen AJA
Heard:
6 May 2019
Delivered:
30 May 2019
Summary:
Prescription – acquisitive
prescription of public outspan – requirements under s 2 of the
Prescription Act 18 of 1943
– continuous possession for 30
years not shown – acts of possession not reasonably indicating
possession as if owner.
ORDER
On
appeal from:
Western
Cape Division of the High Court, Cape Town (Holderness AJ sitting as
court of first instance):
The appeal is dismissed
with costs, including the costs of two counsel.
JUDGMENT
Van
der Merwe JA (
Ponnan,
Tshiqi and Schippers JJA and Eksteen AJA
concurring)
[1]
This appeal concerns the ownership of a farm situated near
Melkbosstrand in the Western Cape known as Farm 77 (Baas Ariesfontein
Outspan) and measuring 425,9081 hectares (the property). The
respondent, the City of Cape Town (the City), is the registered owner
of the property. It is, however, occupied by the appellants. The
first, second and third appellants are the trustees of the Keert
de
Koe Trust. The fourth appellant, Mr Nicolaas Stoffberg, is the son of
the fifth appellant, Mr Marthinus Stoffberg.
[2]
Relying on the
rei
vindicatio,
the
City launched proceedings in the Western Cape Division of the High
Court, Cape Town for the eviction of the appellants from
the
property. In the main, the defence of the appellants was that the
fifth appellant had acquired ownership of the property under
the
Prescription Act 18 of 1943 (the 1943 Act). The issue in the appeal
is whether that court (per Holderness AJ) rightly rejected
the
appellants’ reliance on acquisitive prescription in respect of
the property.
[3]
The property had been designated a public outspan since at least
1832. A natural fountain on the property provided drinking
water to
the trekking farmers and their livestock, hence the name Baas
Ariesfontein Outspan.
[4]
During 1895 the fifth appellant’s grandfather inherited two
adjoining farms in the area surrounding the property. During
1903 he
acquired another adjoining farm by way of a Crown Grant. Since then,
the fifth appellant’s grandfather farmed these
three farms as a
unit. This unit adjoined the property at its north-western corner. In
or about 1938, the fifth appellant’s
father inherited these
farms. He continued farming on them as his father had done.
[5]
On 2 August 1946, the Governor-General of the Union of South Africa
transferred the property to the Divisional Council of the
Cape, the
predecessor in title of the City, under Crown Grant No 78/46. The
Crown Grant
inter
alia
provided that
while the property remains that of the Divisional Council or its
successors in title, ‘it shall not, without
the authority of
the Administrator of the Province of the Cape of Good Hope first had
and obtained, be used otherwise than for
purposes of outspanning . .
.’.
[6]
After he left school during 1947, the fifth appellant, who was born
on 18 March 1931, commenced farming with his father on the
aforesaid
farms. The fifth appellant’s elder brother Mr Herman Stoffberg
subsequently joined him and his father, and the
three of them farmed
together on these farms until 1959.
[7]
During 1959 the three farms were consolidated into one property. It
was registered as Farm 80 and named Keert de Koe. In the
same year,
the fifth appellant and his brother purchased Keert de Koe from their
father and it was registered in their names as
joint owners in equal
shares. The two brothers farmed together on Keert de Koe, and other
farms jointly owned by them, until 1985.
During that year these farms
were, by agreement, divided between the two brothers and in this
process Keert de Koe was allocated
to the fifth appellant and
registered in his name.
[8]
The fifth appellant and his brother entered into a written lease
agreement with the predecessor in title of the City in 1969.
In terms
thereof they jointly leased the property at an annual rental of R600.
The lease took effect on 1 April 1969 and was to
expire on 31 March
1976. I shall return to whether this was the first lease agreement in
respect of the property entered into by
the fifth appellant and his
brother.
[9]
A subsequent lease agreement in respect of the property with the
fifth appellant and his brother, effective from 1 September
1977,
expired on 31 August 1984. This was followed by a lease agreement in
terms of which only the fifth appellant leased the property
for a
period of ten years with effect from 1 February 1985. This renewed
lease agreement with the fifth appellant expired on 31
January 1995,
followed by a further lease agreement for the period 1 August 1996 to
31 July 2001. Although each renewed lease agreement
did not commence
immediately upon the expiry of the previous one, the fifth appellant
and his brother and later the fifth appellant,
in each case continued
to pay the rental in terms of the expired lease until the renewal.
[10]
Upon expiration of the 1996 lease agreement, the fourth appellant had
taken over the farming operations from his father. He
decided not to
enter into a further lease in respect of the property, as he had
formed the view that the property belonged to his
father.
[11]
The wheels of the administration of the City turned slowly until
2007, when it launched the application for the eviction of
the
appellants from the property. That application was referred to trial.
The appellants counterclaimed for an order declaring
that the fifth
appellant was the owner of the property. An alternative counterclaim,
for compensation in respect of improvements
to the property, was not
persisted in.
[12]
After hearing evidence, the court a quo concluded that the appellants
did not prove that the fifth appellant had become the
owner of the
property. It consequently dismissed the counterclaim and granted the
eviction order and ancillary relief sought by
the City, with costs;
but granted leave to the appellants to appeal to this court.
[13]
The case of the appellants rested on the possession of the property
by the persons that farmed successively on the farms that
became the
farm Keert de Koe. In order to show that such possession resulted in
the fifth appellant acquiring the ownership of
the property, they had
to bring their case within the requirements of s 2 of the 1943 Act.
That section provided:
‘
(1)
Acquisitive prescription is the acquisition of ownership by the
possession of another person’s movable or immovable property
or
the use of a servitude in respect of immovable property, continuously
for thirty years
nec vi, nec clam, nec
precario
.
(2) As soon as the
period of thirty years has elapsed such possessor or user shall
ipso
jure
become the owner of the property
or the servitude as the case may be.’
[14]
The meaning of these provisions is well established. The continuous
possession required by this section is the common law
civilis
possessio
, that is, the physical detention of the thing (
corpus
)
with the intention of an owner (
animus domini
). In addition
that possession must be
nec vi, nec clam, nec precario
.
Nec
vi
means peaceably.
Nec precario
postulates the absence of
a grant on the request of the possessor.
Nec clam
means
openly, particularly ‘so patent that the owner, with the
exercise of reasonable care, would have observed it’.
In
Bisschop v Stafford
1974 (3) SA 1
(A) at 8D-F, Jansen JA said
the following with reference to the judgment in
Malan v
Nabygelegen Estates
1946 AD 562:
‘
In
Malan
’s
case,
supra,
the
Court, however, went further than merely deciding the matter of
precario
;
in order “to avoid misunderstanding” it also said:
”
.
. . mere occupation of property ‘
nec
vi nec clam nec precario’
for a
period of thirty years does not necessarily vest in the occupier a
prescriptive title to the ownership of that property.
In order to
create a prescriptive title, such occupation must be a user adverse
to the true owner and not occupation by virtue
of some contract or
legal relationship such as lease or usufruct which recognizes
the ownership of another”.
This appears, in effect, to be a
reference to the Roman law requirement, as understood to-day, of
civilis possessio
for the acquisition of ownership, and
quasi
possessio
for the acquisition of rights.’
Therefore
‘adverse user’ does not constitute an additional
requirement but refers to the element of
civilis
possessio
(in the
case of acquisition of ownership). The onus rests on the party that
relies on acquisitive prescription, and the continuous
period may
include possession by the predecessors in title of that party. See
Welgemoed v Coetzer
& others
1946
TPD 701
at 710-713 and 720-721;
Bisschop
v Stafford
at
7H-9D.
[15]
Having been designated as a public outspan, the property was subject
to what is known as a public servitude. Public servitudes
are created
for the benefit of the public. A public servitude allows the public
to use the land in a specified manner without the
permission of the
landowner. With reference to
Paarl Municipality v The Colonial
Government
(1906) 23 SC 505
at 524, counsel for the City
submitted that ‘strong adverse measures are necessary’ to
establish acquisitive prescription
in respect of land subject to a
public servitude.
[16]
To the extent that it might have been intended to convey that a more
onerous burden is placed on a party asserting acquisitive
prescription in respect of land subject to a public servitude, I
cannot agree. In
Paarl Municipality
the plaintiff claimed that
it had acquired by prescription, Crown land set apart as a public
outspan. Hopley J came to the conclusion
that a public outspan was
inalienable until the passing of the Cape Act 41 of 1902. He
proceeded to say at 524:
‘
If, however,
I hold too strong a view on this point, and if, as was argued, an
outspan is in no better or more protected position
than a public road
under common law, which, on the authority of Voet, may be lost to the
public by continual adverse user, suffered
without protest for the
period of prescription (
Voet
13.
7. 7), still in that very passage he shows what strong adverse
measures are necessary to exclude the public from its right,
and I am
strongly of opinion, as I shall presently show, that no adverse acts
of such a nature ever took place with regard to this
particular
public right.’
[17]
The relevant passage of Voet (
Gane’s
translation) reads:
‘
If a person
has used a public road as his own property, has built upon it, sowed,
planted, dug or put up fences upon it, or been
in any other way
whatever a hindrance to the people’s passing that way, and a
space of forty years has flowed on from that
time without the
people’s objecting or vindicating the use of the road, no one,
as I consider, will doubt that the people
in that case have also lost
the use of such public road by prescription, since no private or
public right, which has been wiped
out by a continual silence of
forty years, can thereafter be set up on any cause or in any person
whatsoever.’
It
appears to me that the nature of the possession referred to by Voet
is no different to that contemplated by s 2 of the 1943 Act.
[18]
A party claiming ownership of land under the 1943 Act has to do no
more than show on a balance of probabilities that he/she
and his/her
predecessors in title had
civilis
possessio
of the
land
nec vi, nec
clam, nec precario
for a continuous period of 30 years. When the court determines that
claim, however, the nature of the property and the type of
use to
which it was put would be important considerations. See
Morkels
Transport (Pty) Ltd v Melrose Foods (Pty) Ltd & another
1972
(2) SA 464
(W) at 468A-B.
[19]
It appears from what I have said that between approximately 1947 and
1959, acts of possession in respect of the property were
performed
jointly by the fifth appellant, his father and his brother and
thereafter jointly by the fifth appellant and his brother.
It is thus
not at all clear to me that the fifth appellant could lawfully claim
exclusive possession of the property during this
period. There are
also several indicators that the fifth appellant did not regard the
property as his own and that he only made
use thereof without the
consent of the owner whilst he was not prevented from doing so.
Foremost amongst these is the fact that
he entered into the lease
agreements in respect of the property. This appears to be
irreconcilable with a genuine belief that he
owned the property. In
the light of the conclusions that follow, it is not, however,
necessary to make a final decision on these
matters.
[20]
The appellants pleaded that the property had continuously been in the
possession of the Stoffberg family since the fifth appellant’s
grandfather acquired the neighbouring farms in 1895. However, only
the evidence of the fifth appellant was presented in this regard.
He
naturally could only testify about what he remembered. He said that
his earliest recollection dated back to when he was seven
or eight
years old. On the basis of this evidence the period of prescription
commenced during 1938 at the earliest.
[21]
It goes without saying that the period of prescription had to be
completed before the first lease agreement in respect of the
property
was entered into. In his evidence, the fifth appellant spontaneously
recalled that a rental of £200 per annum had
been payable in
terms of the first lease agreement entered into after the City’s
predecessor in title asserted its ownership
of the property. Although
the fifth appellant also said that he thought that this took place
after the death of his father (his
father died in 1963 but the fifth
appellant could not recall that), he later said that he could not
remember whether that had been
the case. It is quite understandable
that the City was not in possession of records of its predecessor in
title dating that far
back.
[22]
In my view there is no reason not to accept the evidence that the
first rental was payable in pounds. Judicial notice may clearly
be
taken of the fact that the South African currency changed from the
pound to the rand during 1961. The first lease agreement
had thus
been entered into by no later than 1961. It follows that the
appellants did not show the requirement of continuous possession
of
the property for a period of 30 years. For this reason alone,
reliance on acquisitive prescription had to fail.
[23]
For the reasons that follow, I am, in any event, in agreement with
the court a quo that the acts of possession of the property
relied
upon by the appellants either did not take place with the required
animus domini
or could not reasonably have been perceived as such by the owner or
did not endure for 30 years prior to 1961 or even 1969. The
appellants relied on three categories of acts of possession of the
property. As I have said, there is no evidence that these acts
took
place prior to 1938. They are: (a) the cutting of firewood for the
sale thereof; (b) the grazing of sheep and the erection
of sheep
kraals; (c) the clearing of land and the cultivation of crops.
[24]
The evidence of cutting of wood on the property for purposes of the
sale thereof, is sparse in the extreme. Wood was also obtained
on
other land in the area. There is no evidence of the duration or
frequency of this activity. This is hardly proof of possession
of the
property with
animus
domini
and could
certainly not reasonably be regarded as such.
[25]
According to the fifth appellant’s earliest recollection, there
were no boundary fences in the area. Sheep of the fifth
appellant’s
father, as well as of his uncle, grazed on the property and on a
neighbouring farm known as Wolwerivier. Grazing
was available on the
property only during winter. There is no evidence, however, that the
sheep grazed on the property for the
duration of the winter.
Similarly, there is no evidence as to when the sheep kraals were
constructed nor that they were intended
to be permanent structures.
On the evidence, the grazing of sheep on the property may very well
have been sporadic. Sporadic grazing
was entirely consistent with the
use of the property as a public outspan and would not reasonably
indicate use of the property
by a particular person as if he was the
owner thereof.
[26]
A careful reading of the evidence of the fifth appellant indicates
that the clearing of portions of the property for purposes
of
cultivation of crops only commenced after he left school during 1947
and gained momentum when a tractor was acquired during
approximately
1952. Thus, prescription based on these acts of possession would not
have been completed by 1961 or even by 1969.
[27]
For these reasons the appeal cannot succeed. It is not disputed that
the employment of two counsel was justified. In the result
the appeal
is dismissed with costs, including the costs of two counsel.
________________________
C
H G van der Merwe
Judge
of Appeal
APPEARANCES
For
Appellants: J D de Vries
Instructed
by:
De
Kock & Co Inc, Melkbosstrand
J
G Botha Attorneys, Bloemfontein
For
Respondent: J Muller SC (with him E van Huyssteen)
Instructed
by:
Fairbridges
Wertheim Becker, Cape Town
McIntyre
& Van der Post, Bloemfontein