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Citation Court Judge Heard 1972 (2) SA 464 (W) Witwatersrand Local Division Colman J August 2, 1971; August 3, 1971; August 4, 1971; August 5, 1971; August 6, 1971; August 9, 1971; August 10, 1971; August 11, 1971; August 12, 1971; August 13, 1971; August 16, 1971; August 17, 1971; August 18, 1971; August 19, 1971; August 20, 1971 August 27, 1971
Annotations Link to Case Annotations [zFNz] Flynote : Sleutelwoorde Prescription - Acquisitive prescription - What possessor of land claiming to have acquired it by prescription must prove - When possession is adverse Failure to prove civil possession, B non-precarious tenure or adverse user. [zHNz] Headnote : Kopnota It is not necessary that the possessor claiming to have acquired ownership by prescription need have been bona fide either in assuming or in retaining possession. It is however necessary for him to prove the subjective element in civil possession, i.e., he must prove both the factum and the separate element of animus . No use, occupation or C possession is adverse, for the purposes of the law of acquisitive prescription, unless the owner has a legal right to prevent it. The plaintiff claimed an order declaring that it had, by prescription, acquired the ownership of certain lots in a township in the district of Johannesburg. The action was opposed by a company as the registered owner of the plots and by the Minister on behalf of the Government which was the first defendant's immediate predecessor in title and from which D the first defendant had obtained transfer in pursuance of a contract of exchange concluded in 1969. The Court found that the plaintiff had had possession for 30 years of the disputed ground, nec vi, nec clam , sufficiently continuous to support its claim. It found, further, however, that it had failed to prove, as a fact or a probability, that for the whole of the requisite period it and its predecessors had occupied otherwise than under precarious tenure; i.e. it had failed to prove that during the relevant period, or any part of it, it had not occupied under an express or implied precarious grant from the E Government. It also found that the
plaintiff had failed to prove that it had the necessary animus possidendi throughout the period; and also that its possession had been adverse to the rights of the owner. Held , as the plaintiff had failed to prove civil possession, non-precarious tenure or adverse user, that absolution from the instance should be granted with costs. F [zCIz] Case Information Action for a declaratory order. Facts not material to report have been omitted. B.L.S. Franklin, S.C. (with him R. H. Peart ), for the plaintiff. R.S. Welsch, Q.C. (with him R. J. Goldstone ), for the first defendant. G. A. Coetzee, Q.C. (with him S. A. Cilliers ), for the second defendant. G Cur. adv. vult. Postea (August 27th). [zJDz] Judgment H COLMAN, J.: The plaintiff in this action claims an order declaring that it has, by prescription, acquired the ownership of lots 583, 620 and 621 in the township of New Doornfontein, district of Johannesburg, the value whereof (the parties agree) is R60 000. There are further claims for consequential and alternative relief which need not be mentioned at this stage. The action is opposed by the first defendant, a company which is 1972 (2) SA p465 COLMAN J registered in the Deeds Registry as the owner of the three lots, and by the second defendant, on behalf of the Government, which was the first defendant's immediate predecessor in registered title and from which the first defendant obtained transfer of the lots in pursuance of a contract A of exchange concluded in 1969. During the greater part of the period relevant to this action the Government held the lots under registered leasehold title; the freehold owner during that period was Johannesburg Estate Co. Ltd., whose name has since been changed to Johannesburg Estate Co. (Pty.) Ltd. That company was the registered owner of the freehold during the period from 1894 until 1949, when the Government's B leasehold title was converted to freehold. The Johannesburg Estate Co. Ltd. is not a party to this action, but it is aware of the litigation and has waived any right which it may have to be joined or to intervene in it. The plaintiff is a company which, since its incorporation in 1932 under C the name of E. Morkel (Pty.) Ltd., has carried on a cartage and storage business in Johannesburg. The business was originally owned by Mr. P. G. E. Morkel,
The expression 'the H disputed ground' will refer to lots 583. as conducted by the plaintiff or by one of its predecessors. 620 and 621. is. On that block Morkels has conducted its main business operations since some date between 1918 and 1922. New Doornfontein (sometimes referred to as 'stands'). The leasehold titles to lot 581 and to lot 580 immediately to the west of it. In 1918 the business was taken over from him by a company called E. First Street. A Grannum. 1922. Morkel in July. but that company went into liquidation in February. and sloping roughly and irregularly downwards towards the north-east. 1937. E. 620 and 621. and resumed the conduct of the business. form part of a block bounded on the north by Miller Street. Adjacent and to the north of lot 582 is lot 581. Voorhout Street and Second Street. Mr. I shall refer to that area as 'the Morkel block'. on the east by Bertrams Road and on the west by First Street. At some later stage the plaintiff changed its name to Morkels Transport (Pty. I E shall be referring (according to the context) to that business. having remarried at some stage after the death of Mr. It is an unfenced. free of vegetation except for one tree near the corner of G Voorhout Street and Bertrams Road.) Ltd. 3 . When I use the term 'Morkels' in this judgment. which originally consisted of ten lots but B which is now consolidated lot 539. which is occupied by the first defendant and which has its southern boundary contiguous 1972 (2) SA p466 COLMAN J with the northern boundary of lot 582. were transferred in 1937 and 1936 respectively to the wife of Mr. Morkel acquired the assets and liabilities of the company on some date between February and September. a rectangular area consisting of the three lots in dispute together with lot 582. The expression 'the open ground' in this judgment will refer to the rectangle consisting of the four vacant lots. F on the south by Voorhout Street. unimproved area. and was for some months under the control of a liquidator. A building on lot 580 was referred to in evidence as 'Mrs. E.. D 1922. Immediately to the west of the block on which the open ground is situated is a block bounded by Miller Street. but its southern portion. She is now Mrs. The greater part of that block is now built up. There is nothing on the ground to indicate the boundaries of the four lots of which it consists. Morkel Ltd. which he continued until it was acquired by the plaintiff in 1932. Morkel and who signed himself as such. and apparently always has been. There are breaks in the kerbing in First Street. Along the three street frontages of the open ground there are pavements with kerbs and gutters which were presumably laid down by the Johannesburg Municipality. Morkel. Lots 583. Grannum's store'. a vacant. Voorhout Street and Bertrams Road. through which large vehicles can enter the open ground. or by some or all of its owners successively.who was commonly known as E. unpaved piece of ground.
Morkel. peaceably and openly exercised full rights of ownership over each of the said lots 583. whereby the scope of the enquiry was somewhat restricted. the said firm of E. since 1956. 6 of that document. During the course of the trial counsel for the plaintiff made a formal concession from the Bar. Thus (so the argument went) the plaintiff had not discharged the onus of proving that. admitted that there had been peaceable and open use by the plaintiff. 6. it would not rely upon any occupation or possession of the disputed ground by it subsequently to the calendar year 1953. The major enquiry in this action is therefore whether or not it has been proved that there was such uninterrupted possession of. 6 in issue. or. notwithstanding the last alternative F averment in para. [The learned Judge analysed the evidence and proceeded. in its plea. but otherwise it put the averments in para. 4 .] Counsel for the second defendant. and in the alternative pleaded that the plaintiff's possession (if any) E had been interrupted in 1932 and again in 1940. and without recognising or acknowledging any title in the first defendant and its predecessors-in-title or any other person. In its amended form it reads as follows: C 'The plaintiff and its predecessors-in-title. While conceding that it was not necessary for the plaintiff to prove continuous use of every square yard of the area. He argued that the need of Morkels for space additional to the adjoining premises occupied by them probably grew with the years.' D The first defendant. have continuously since 1918. continuously for more than thirty years. alternatively 1923. 6 of the plaintiff's particulars of claim. Morkels acted in such a way as would constitute occupation by 1972 (2) SA p467 COLMAN J them of the disputed ground. alternatively 1922. the disputed ground for any continuous period of 30 years between the beginning of 1918 and the end of 1953 as will support its claim to have acquired that ground by acquisitive prescription. for the whole of the 30 .year period the use of the disputed ground by Morkels was sufficiently extensive to constitute detentio of that ground.year period. did not make the same concession in respect of the earlier part of the relevant period.The vital averment in the plaintiff's particulars of claim is to be found in para. He stated that. while conceding that in the latter H part of the 30 . so that any prescriptive period which might have been running in favour of the plaintiff had thereby been interrupted. and that it is unlikely that they made extensive use of the open ground until about the middle '30s. 620 and 621 without leave or permission and adversely to the first defendant and its predecessors-in-title to such lots and all the world. or exercise of rights of ownership by G Morkels over. The second defendant in its plea denied all the averments in para. of portions of the disputed ground. further alternatively.
603 . as amounted to detentio by Morkels. Stephenson v Lamsley . nec vi. shall ipso jure become the owner of the property. I am of the view that the plaintiff discharged the onus resting upon it to show that the use of the ground. 701 at pp. in the early years. 2 of the 1943 Act reads as follows: '(1) Acquisitive prescription is the acquisition of ownership by the possession of another person's. repeal any of the common law provisions F relating to acquisitive prescription which were not inconsistent with what was enacted. I have come to the conclusion that they said enough to establish prima facie such use of the ground. nec clam. are these: the possession must be adverse to the rights of the true owner (see Malan v Nabygelegen Estates . 711 . It will be convenient to turn now to the law relating to acquisitive prescription.. Because there was no cross-examination specifically directed to the question which I am now considering. uninterrupted possession. They did not..4. E . 1946 T. continuously for thirty years nec vi. It was so held by the Appellate Division in Swanepoel v Crown Mines Ltd . H There must have been no acknowledgment by the possessor of the owner's title ( Voet . He can rely on possession. has no bearing D on the present enquiry.' Those provisions do not constitute a codification or an exhaustive statement of the law relating to acquisitive prescription.9). and it became necessary for me to study the evidence of those witnesses who deposed to what Morkels were doing on the open ground during the early part of the relevant period. It is not necessary that every part 5 .D.. (2) As soon as the period of thirty years has elapsed such possessor.. in addition to continuous.9. G Among the common law requirements. nec precario. 44. as opposed to mere detentio (see Welgemoed v Coetzer and Others .712). 68 of 1969. 796). throughout the period. 1954 (4) SA 596 (AD) at pp.3.P.. and it must be full juristic possession ( possessio civilis ). of the appropriate kind. nec clam. 1946 AD 562 at p. and in a number of subsequent decisions.counsel said that occasional use for the parking of one or two vehicles would not constitute such use or occupation as is required for acquisitive prescription. 574). The relevant portions of sec. the witnesses were not called B upon to differentiate between the earlier and the later years as clearly as one might have wished. The continuous possession for 30 years need not have been that of the claimant alone. was sufficiently extensive to constitute physical possession...3. But looking at their evidence in the light of the argument. A That argument is not without plausibility.. They were intended to clarify or settle certain aspects of the law relating to prescription and did not enact more than was necessary for that purpose. C As the evidence of those witnesses stands uncontradicted. therefore. 18 of 1943. by his immediate predecessor or predecessors ( Voet . The later Prescription Act. nec precario . 1948 (4) SA 794 (W) at p. and I shall start with a reference to the Prescription Act. immovable property. 44.
therefore. G I shall consider next whether the occupation of the disputed ground was sufficiently continuous to support the plaintiff's claim.P. 292). Bona fides was a requirement of the Roman Law and the Canon Law.. I am satisfied. It is not necessary. In a modern society. in my judgment. nec clam . The justification is said to have been a need or desire to penalise neglectful owners. it appears. for practical purposes. provided that there is no substantial interruption. 33. but I have no doubt that the same principles apply when it is the acquisition of ownership by prescription that is in issue. And what Morkels did. 6 . Nor is absolute continuity of occupation required. and sometimes even abroad. Those were cases relating to servitudes. in some circumstances use of every square foot of an area would be impracticable. 1946 T. and the 1972 (2) SA p468 COLMAN J test is whether there was such use of a part or parts of the ground as amounts. it did openly. quoted with approval in A Welgemoed v Coetzer and Others . it can be safely accepted that it was not done by force. (See Pollock and Wright on Possession at p. There may have been some social justification for that approach in a village society where it was easy for an owner to D supervise and inspect his property. upon the nature of the property and the type of use to which it is put (see Boshoff and Another v Reinhold and Co . But that is by the way.D. though even there one might question the equity of favouring the cynical usurper at the expense of one whose fault was no more than idleness or negligence.of the area be occupied or used. any such contention would. For reasons which I have given. or upon the probability that there were short periods during the daytime H when all the vehicles were away and there was little or nothing on the ground. 1939 CPD 135 at p. to possession of the whole. that the possessor claiming to have acquired ownership by prescription need have been bona fide either in C assuming or in retaining possession. Counsel for the defendants did not rely upon the fact that at no time was every square yard of the disputed ground simultaneously in use by Morkels. in this regard. 1920 AD 29 at p. Mocke v Beaufort B West Municipality . In enquiring whether or not the plaintiff has proved all the elements of F acquisitive prescription in this case. the social desirability of the rule may be questioned. that the occupation was nec vi. that it is not necessary for the plaintiff in this case to show that it assumed or retained possession of the disputed ground under colour of right or in good faith. 142. Although the evidence does not deal with the circumstances in which Morkels began to use the open ground. It E seems to be well established. I need not delay over nec vi or nec clam . and indeed it was common cause. 31. 1932 CPD 287 at p. 720). Much depends. so that all who looked could see. but the Roman-Dutch system (somewhat uncharacteristically) preferred formalism to equity in that regard. Head v Du Toit. where unimproved property is frequently held for long periods by owners who live far away. 701 at p. have been ill-founded.
as he would surely 7 . it referred to 26 convicts and 3 warders. as a refund of wages advanced to warders. or caused to be placed. The complaint was directed to the provincial authority rather than to the Central Government because the open ground. was held for educational purposes and was therefore under the national control of the Province. debris on the open ground. It seems to me highly improbable. and. and an official of that body confirmed. that there was. the Johannesburg Medical Officer of Health complained to the Transvaal Provincial Administration of an accumulation of builders' debris and refuse on the open ground. however. These are indications. Another document refers D to a charge of 13s. in respect of tools supplied for levelling of stands in New Doornfontein . B This complaint was reported to the School Board. on the open ground.Reliance was. but I do not know for how many hours the convicts worked. which Morkels had placed. I have not lost sight of the fact that the onus is on the plaintiff to prove uninterrupted possession. Yet another document refers to nineteen wheelbarrows transferred from a school in Johannesburg to 'Troyeville vacant stands' in February of 1940. by consent. suggesting that the refund was made by cheque. It can perhaps be inferred from the F documents that the work took two days. There is an ink endorsement on that document. What those documents reveal is this: 1972 (2) SA p469 COLMAN J In August 1939. which I need not detail. Sly. indeed. It is not known how much of the area of the disputed ground the work involved. It is my view. and I am willing to assume that the necessary work was done. admitted as evidence of the facts recorded therein. He suggested that two loads should be removed and the rest used for levelling the ground by means of convict labour. placed upon the evidence (such as it was) which was said to have proved an interruption of possession in 1940. through it. however. Mr. referred to earlier in this judgment. An application to the prison for convict labour was completed early in C 1940. that the work was such that Morkels were deprived of the use of the G whole or the greater part of the disputed ground for any substantial period. and there is a receipt for such payment. of the Witwatersrand Central School Board. that all these documents E relate to work done on the open ground in pursuance of the complaint by the Medical Officer of Health. or how it was carried out. after an inspection. No witness was available to speak of that event. but counsel for the defendants relied upon certain documents which were. however. although registered in the name of A the Government. The builders' debris referred to was probably what remained of the material. In February of that year the School Board rendered an account to the Province in which it claimed £1 13s. although he remembered that convicts came to the ground.52 units at 3d. that the work done in 1940 was not shown to have constituted or involved such an interruption of Morkels' occupation of the disputed ground as would defeat an otherwise valid claim to have acquired the ground by prescription. could recollect no details of the event.
To some extent they merge into and coincide with one another. These three elements in the plaintiff's cause of action are not mutually exclusive. Accordingly. But it was so scanty and so weak that counsel for the defendants placed no reliance upon it. to H. D The nature of a precarium is explained in Malan v Nabygelegen Estates . on that page. The event seems to me to be analogous to those which were held to be no H interruption in Campbell v Pietermaritzburg City Council . strictly to the question of whether there was or was not precarious tenure by Morkels. 573. Wynne v Pope . but I must decide the matter on such information as is available. E During the period after 28th September. 1972 (2) SA p470 COLMAN J Three issues which remain for consideration are whether it is proved that Morkels had full civil possession of the disputed ground for the requisite period. 1946 AD 562. as far as that is practicable. Ltd. I would say this: the sufferance. during which the Government held the ground under a long F lease and the freehold owner was the Johannesburg Estate Co. I am of the view that the concept B non precario is but a special case of the wider concept 'adverse'. requires a little more consideration. The permission may be granted expressly or tacitly ( Malan's case at p. as if each were a separate and self-contained requirement. 41).. and whether it has been shown that the possession was adverse to the owner's rights. E. The onus was on the plaintiff to prove that neither it nor its predecessors held the ground precario during any part of the relevant period. Mr. at this stage. whether it has been shown that they were not occupying A under a precarium during the whole or any part of the period. the relevant permission (if there was any) would clearly have had to be the permission of the Government. A person holds precariously when he holds on sufferance or by virtue of a permission which is revocable at the will of the grantor. when the Government held the open ground in full ownership. But confining myself. as will later appear. 1960 (3) SA 37 (C) at p. I would respectfully adopt the approach of the learned Judge at F. Morkel and some others who might have been able to speak (one way or another) on this issue are no longer alive. if there 8 . There was some documentary evidence relating to the other interruption which was pleaded by the second defendant. 1949. But these three features of the law of acquisitive prescription are dealt with separately in many of the authorities and they were argued separately in this case. I resolve this issue in favour of the plaintiff. 680. indeed. The earlier period. Unfortunately. C It will be convenient to begin with the requirement nec precario . I shall therefore discuss them.have done if it had involved a major disturbance of normal activities. The division of rights in respect of the land raises an interesting problem which will be discussed later in this judgment. 1966 (2) SA 674 (N) at p.
whether it has been proved by the plaintiff that Morkels did not. it seems to me. acting within the scope of his express or implied powers. Later. an official became aware of Morkels' use of the ground. that no representative of the Government ever E inspected the ground or otherwise became aware of the fact that Morkels were using it. Some of the records admitted by consent indicate that the Government (a term I now use to include the Transvaal Provincial Administration and the School Board) did not at any stage contemplate the immediate use of D the open ground by it for any purpose. Morkel or to some other representative of Morkels 'You may use the ground (or continue to use it) until we need it'. contained nothing which detracted from the lessee's right to occupy or to allow others to occupy the property. during the relevant 30 . that at some stage during the decades. The enquiry is. It seems to me that if the Government had entered into a formal sub-lease of the ground. Later still that proposal was rejected. It is possible.was any. which gave rise to a tacit precarium. occupy under an express or implied precarious grant from the Government. and that that led to some such conversation as I have postulated. it was decided that the ground was unsuitable for that purpose. The long leases. during the currency of the leases. But I cannot make the same assumption about a precarious permission: If at some time between 1918 and 1953 an official of the State. in my view. by consent. would not necessarily have been recorded by either party. to grant precarious tenure to Morkels without the consent of the leaseholder. therefore. There is no direct evidence which either proves or negatives the making 1972 (2) SA p471 COLMAN J of such a grant. that would be on record in its files. that. F Occasions on which that might well have happened (if it had not happened before) were after a report of the Medical Officer of Health about the rubbish 9 . the B Provincial Administration or the School Board. would have had to be G that of the Government. But it is at least equally possible. or some course of conduct.year period or any part of it. and a clause restricting the type of business purposes for which the ground could be used. nor do those A records of Morkels which are available. But that. had said to Mr. save for a clause restricting occupation by members of certain non-White groups of people. received as evidence of the facts recorded therein) contain no record of a precarious grant. The files of the Transvaal Provincial Administration and of the Witwatersrand Central School Board relating to the open ground (which were. It was at one stage contemplated that it might become the site of a school to serve the area called Bertrams. Still less need there have been a record if there had been a conversation between two such C people as I have postulated. and there was some correspondence about its possible use for the purposes of another school. therefore. in my judgment. E. is inconclusive. And what is more H directly important in the present context is this: The freehold owner had no right.
If permission was given during one of her absences. In about the middle of January. or after the similar complaint in 1939. according to Sive. The evidence was given by Mr. E Sive's evidence stands uncontradicted. 1956. it might H not have been reported to her. of the permission which Sive claims to have been granted. according to her evidence. before he began to make use of the open ground. and May. D Thereafter. that part was let to the plaintiff. Grannum) would have known of it. Yet. worth mentioning that there is no record in the School Board files. because of that. E. and in Durban from 1944 to 1947. she knew nothing of any precarious grant. Beyers replied. He said that his company took occupation. that Mrs. his G widow (now Mrs. Sive says that he acted on the suggestion and spoke to the secretary of the School Board. or other Government records. Beyers. But I need not confine myself to 1972 (2) SA p472 COLMAN J that reasoning because there was some important evidence. 1939. But Beyers is no longer alive. in December. E. on that analysis alone. It must be noticed. There is no reason why I should assume that Mr. It was argued. Sive. on behalf of the plaintiff. of a building on lot 851 which lies immediately to the north of lot 852 and thus has a boundary common to itself and to part of the open ground. he parked vehicles on lots 582 and 621. Sive said. I would be inclined to say. a 10 . and for some years it had a large tank on lot 621. or words to that effect. Morkel behaved like a pirate and not like an upright and candid citizen. Morkel in 1937. he asked Beyers if he (Sive) could make use of the open ground for the parking of vehicles and other things such as machinery. Grannum was in Kenya between November. perhaps. who was then the manager of Morkels. and good neighbourly relations were B established between Sive and Mr. 1940. to which I have not yet referred. Another possibility is that Mr. 1957. because after her husband's death she took an active part in the administration of the plaintiff's affairs. As part of the building was not needed by the first defendant. properly and honourably sought and obtained precarious permission to do so. Later he mentioned that fact to Beyers. Sive said. At one stage the first defendant had a machine standing on lot 583. who replied 'that's fine'. It is. Morkel. that the ground belonged to the School Board and that Morkels had permission C to use it provided that they kept it neat and clean.on the ground in 1932. who gave him permission to use the four lots. that the plaintiff had failed to discharge its onus of proving that its tenure and that of its predecessors was non precario . which bears on this issue. however. Beyers suggested that Sive seek like permission from the School Board. that if anything of that kind had taken place after the death of Mr. and I was rightly reminded by counsel for the plaintiff that. the managing director of the first A defendant.
in all other respects. either to the attorneys or to the Court. Sive. or to Sive.cautious approach to Sive's evidence is called for. That letter was so worded as to suggest (though it did not 1972 (2) SA p473 COLMAN J explicitly state) that a letter which had been addressed to the first defendant some five years before had never been received. and he could have asserted that the 1965 letter had never been received. If he had chosen to be untruthful in his evidence he could easily have said that Beyers had used the word 'verbal'. and I was told. had indicated that Beyers had told H Sive that Morkels had 'verbal' permission from the School Board to use the open ground. and because of certain probabilities. during that line of G cross-examination. In each case it would have been pointless for Sive B to lie. Moreover. a satisfactory witness. But nothing to Sive's discredit emerged from that enquiry and no reliance was placed upon it in argument. it would be unsafe to accept Sive's testimony about his conversation with Beyers because of certain unsatisfactory features of his evidence on peripheral matters. when he came to give evidence. Sive said that Beyers did not tell him whether the permission was 'verbal' or in writing. One of the contentions that was raised against Sive was based upon the fact that counsel for the first defendant. It is my view that the discrepancies arose out of misunderstandings such as are C not uncommon in respect of minor points which are being conveyed by a litigant or witness to his attorney. Neither of these incidents raised any substantial doubts in my mind about the veracity of Sive who was. it was argued. that it was directed to credibility. or to a misunderstanding between him and the first defendant's legal advisers. but there was no reason that I can see why he should have wished to lie on either point. it was argued. although it had been lost. A somewhat similar criticism was based upon a letter which was written in 1970 by the first defendant's attorneys in pursuance of Sive's instructions. And he added that at the time when he instructed the first defendant's attorneys to write the 1970 letter. F Sive was cross-examined at considerable length about the details of the transaction whereunder the first defendant acquired the open ground from the Government. I have already given my reasons 11 . D It is unlikely. In evidence. Nor am I impressed by the contention that Sive's version is improbable. A he remembered the earlier one. that the School Board would have given permission to Morkels. to use the open ground. when putting the evidence which Sive would give to a witness. admitted that the earlier letter had been received. It would have been impossible to expose such lies if Sive had chosen to tell them. He could not explain why the first defendant's attorneys had used language suggesting the contrary. What I have to decide is whether this discrepancy points to untruthfulness on Sive's part.
whereby Morkels. in view of the friendly relationship between the two firms. it was argued that it was improbable that Beyers would have behaved as Sive said he did. Sive's evidence would not 1972 (2) SA p474 COLMAN J have discharged it. 701. and need go no further. unconscious of the fact that bold usurpation had fructified into ownership. If the proposed use by the first defendant of the open ground had been extensive. no admission by the plaintiff's manager of precarious tenure during the relevant H period. that the plaintiff has failed to prove. Beyers may have been referring to a transaction during the previous three years. and its contemplated use of the ground would not have interfered materially with the activities of the plaintiff. I am constrained to hold. But it rests on the plaintiff. And. It is very probable that Beyers knew that. 1955 (1) SA 592 (T) . But as my decision may well be taken on appeal. that there should have been physical possession. throughout the relevant 12 . If the onus had been on the defendants. The conversation took place after the expiry of the prescriptive period for which the plaintiff contends. the claimant must. it was held. that for the whole of the requisite A period it and its predecessors occupied otherwise than under precarious tenure. therefore. But he might equally well have been speaking of a permission granted many years.P. and reiterated in subsequent cases (including the Transvaal case of Molotlegi v Brummelhoff and Another . as I do. 1946 T. when I take Sive's evidence in conjunction with the other matters I have mentioned. in addition have had. There was. G I accept Sive's evidence. I have also expressed my views on the contention that such permissions would have been on record if they had been granted. because the use would have been prejudicial to Morkels' enjoyment of the ground.D. there might have been such an improbability. Having reached that conclusion. It was held in Welgemoed v Coetzer and Others . It is not enough. it had few vehicles. and decisions in the other three Provinces) that the possession C required to found acquisitive prescription is full possessio civilis as opposed to mere detentio or naturalis possessio . there was no reason why he should not have been helpful. I think it proper to express my views about two other issues upon which I have had the benefit of full and able argument. E Finally. as a fact or a probability. And. But the first defendant's business was not F large at the time. and I regard the statement made to him by Beyers about Morkels' tenure of the open ground as significant. and were told that they could continue to occupy on sufferance. sought to legitimise it. I am bound to hold against the plaintiff. The first of those relates to the nature of Morkels' possession of the B disputed ground. or some decades.for thinking that there was no reason why the School Board should not have done so. before his conversation with Sive. and Beyers did not say when the permission had been granted by the School Board.
vol.3): 'The animus possidendi must consist in the intention of exercising ownership. p.' 13 . that he is the owner of the property occupied. cases I have not merely the corpus . I may hold a thing in my hands and may intend. J.. Whether or not the possessor intends to use the thing himself. para. E mistakenly. and he must contemplate dealing with it practically just as an owner is accustomed to do by virtue of his right. as I have already stated. sub 'The Animus Possidendi' has it thus: 'The intent necessary to constitute possession is the intent to exclude others from interfering with a material object. but the animus domini can co-exist with mala fide possession. but also the animus of possession. 712 et seq. 6. The main reason why the plaintiff failed in that case was D because the necessary animus was not shown to have existed.9 ( Gane's trans. to hold it for myself alone. Institutes.. I not only hold the thing in my hands. 322.3. the person in occupation believes. The Law of Things .period. 579)) 'with the intention of keeping it for himself'. An example of the latter alternative occurs in the case of a thief. The possessor of a thing is not he who has. in which it is pointed out that even a thief may have civil possession. It is my intention to exclude every one else from the thing. and the claim of the present plaintiff must similarly fail unless I am persuaded that the occupation of the disputed ground by Morkels was accompanied by the mental state which is an element of civil possession. pp. It may be consciously wrongful. he must intend to exclude the interference of other persons.. In Sohm. in spite of my knowledge that I am not the owner. our law does not require that the possession be bona fide. at the same time. This is the animus rem sibi habendi . the animus domini . as sometimes happens.. the will coinciding with the physical relationship. The person who holds animo domini need not think that he is the owner.' 1972 (2) SA p475 COLMAN J And the following passage appears in Savigny on Possession (Perry's trans. That concept is explained and elaborated in a number of authoritative works on jurisprudence and on possession. but he who intends to act as if he had such a right. In all such. we find the following passage: G '. or. or believes that he has. 67. the animus is clearly present... and consequently A not as one recognising anyone better entitled than himself . The thief has a possession no less than that of a true owner. When... it is sufficient if he intends to keep the land or other res as if he were the owner or (as Voet puts it in 44.....' Salmond on Jurisprudence . 72 . but intend to hold it for myself alone.... ). at p... However. in Welgemoed's case at pp. it being my decided intention to keep the thing for myself alone. 11th ed.. The animus sibi habendi is not necessarily a claim of right. as H it is called by modern writers. a right to it. the animus domini (see the judgment of MURRAY.
hoping. possibly.(The underlining is mine). and if he is confronted by the true owner or the police he intends. and without right or colour of right. or that he will have acquired a prescriptive title before that happens. It is not difficult to apply the concept embodied in these passages to the mala fide holder of a movable. He may hope and believe that his occupation will never be detected and disturbed. who started to take an active interest in the affairs of the plaintiff company after E. and as soon as. But he was a mere underling.' But she went on to concede that there was no discussion of the matter. He intends to return it to its owner if ever. so that she was in no position to speak of the state of mind of the other directors. has detentio . Morkel was not available to testify. in my view. Grannum. falsely to put forward a E claim that he owns the land. if necessary. E. Morkel during the periods when he owned the business. At 14 . that throughout the relevant period Morkels had the necessary animus possidendi? I think not. The bicycle thief intends to keep and use the stolen bicycle as if it were his own. But his intention is not to keep the book as his own. And the only director who was called was his widow (now Mrs. C if ever. but not civil possession. When it is land that is occupied by someone other than the owner. and he may intend to keep and use it for a long time. H Mrs. and takes away a book. various states D of mind which the occupier may have. That may be contrasted with the state of mind of an honest advocate who enters a colleague's chambers during the absence of the latter. We used it. Grannum). But I shall not complicate the enquiry in that regard. What had to be F proved was the state of mind of Mr. He hopes to escape detection. He. Morkel's death in 1937. Mr. Was it proved. to succeed therein. and of the boards of directors of the two companies which owned the business and occupied the open ground during parts of the 30 . By 'we' I mean the company. E. on some basis. in this case. said this with reference to the open ground. He may intend to give up occupation when he no longer needs the land. and his mind was not the mind of the firm. Sly said that he assumed that the open ground belonged to Morkels. We were quite resolved to stay there. I should add that the state of mind of the G liquidator who was briefly in control during 1922 could also be relevant.year period. uses. He may know that it is a book which the owner seldom. during cross-examination. there are. he is asked to do so. or by asserting a sale and delivery to himself. to dispute the owner's claim by putting the identity B of the bicycle in issue. and in respect of the period after 1937: 'We considered it as ours. Or he may intend. similarly. or sooner if asked by the owner to do so.
1937. to argue the plaintiff's case rather than to state facts. and who intended to give up occupation if called upon to do so. the difference between recollection and contention. I would add this: in February. The plaintiff was using the open ground as a whole. or been said or thought. for she was by no means a perfect witness. The request was refused. therefore. and either did not understand. But Mrs.year period was not different from that which was voiced by the managing director on 30th January. however. 1963. In my judgment it was rather the state of mind of a precarious holder or of a trespasser who knew that his occupation could G be terminated at any time. Nor does the minute book reflect any such change. Grannum said later in her evidence that. Grannum had been told of nothing which had happened between 1937 and 1963 which had altered the nature of the plaintiff's tenure of the open ground. the plaintiff wrote to the Secretary for Lands. which it mistakenly referred to as lot 582. She was A intelligent and articulate. But Mrs. at any rate. she conceded (with some reluctance. before 1937. or pretended not to understand. Moreover. Grannum was even doing that accurately. when dealing with a directors' meeting held on 30th January. or to hold it 'as of right' (as some of the authorities put it). but not very logical when called upon to deal with abstract concepts. in my view. It may be assumed that the plaintiff's directors were unaware of the law relating to acquisitive prescription. She tended. Indeed. D That. counsel for the plaintiff conceded that she was an unsatisfactory one. when the announcement was made. that Mrs. and it seems 15 . at times. the contrary was not proved. Beyers. had told the meeting that 'at any time the vacant stands adjoining the company's premises could be closed off'. It seems probable. she was reflecting her own state of mind. that the mental attitude of the company and its predecessors during the relevant 30 . or its E mental attitude to that tenure. C There can be no doubt that Beyers was referring to the open ground and that. was long after the expiry of the allegedly prescriptive period. none of those present expressed any surprise or asked how that unfortunate situation had arisen. It was not consistent with an intention on the part of Morkels to keep the disputed ground for themselves.best for the plaintiff. F That state of mind was not. 1972 (2) SA p476 COLMAN J I am by no means sure. the animus domini . in the context. Mr. so it seemed to me) that the plaintiff's managing director. and there is plausibility in that suggestion. B 1963. asking whether the Government would be willing to let lot 582 to the plaintiff on a monthly tenancy. of course. the 'closing off' referred to and meant the exclusion of the plaintiff from the ground. formed without knowledge of all that had taken place. It has been suggested that what the plaintiff wanted to hire H was the whole of the open ground.
and other authorities. including one which I have already cited. not a very strong one. it would be in conflict with Welgemoed v Coetzer and Others. 679) that the claimant in that case had at all material times believed that the ground in dispute was part of his own farm. A But what I can say is this: there seems to be no reason why the mental attitude of the plaintiff to the disputed ground should have been any different from its mental attitude to lot 582. 583. to make the observations relied upon by counsel for the present plaintiff. I have tried to make it clear that factum and the animus are two separate elements in that type of possession. 680. and its relationship to civil possession. supra . If the passage did G constitute such authority. But in my view it adds weight to what I have already said on the question of animus. And whatever the reason may have been for seeking a lease of lot 582 only. Counsel for the plaintiff sought to meet the difficulty by arguing that an inference of full civil possession arises from the fact of occupation C unaccompanied by any manifest recognition of the true owner's rights. But F what followed suggests that the learned Judge was not doing that. But there may have been some good reason for doing that. a case which I am 16 . That such a recognition would be fatal to the plaintiff's claim appears from Pratt v Lourens . it can be inferred B from the request that the plaintiff did not consider itself to be holding any part of the open ground 'as of right' or animo domini . The passage discusses adverse user. and I do not feel justified in elevating what is no more than a conjecture into an assumption that when the plaintiff wrote 'lot 582' it means 'lots 1972 (2) SA p477 COLMAN J 582. They began with the words 'in any event'. The inference is. The learned Judge found as a fact (at p. not state of mind. that it should have chosen one lot only.unlikely. 1966 (2) SA 674 (N) at p. each of which the plaintiff has to prove. 1954 (4) SA 281 (N) . which suggest that the Court was about to enunciate some approach to civil possession alternative to the finding which he had just made about the plaintiff's state of mind. 620 and 621' and thus overtly recognised the title of the Government to the disputed ground. on p. and the one furthest from its own business premises. D Pietermaritzburg City Council. but he deals with conduct. if it thought it necessary or desirable to obtain a lease of part of it. But counsel pressed upon me an obiter dictum in Campbell v. That finding resolved. perhaps. in favour of the plaintiff. and I cannot read what he said as authority for the proposition that there is no need to prove the subjective element in civil possession. But the learned Judge went on. And I have given reasons for my view that what Morkels did is inconclusive as to what they thought. 682. the question of whether there had been occupation with the intent necessary to constitute civil E possession. and had occupied it in that state of mind.
and nothing that Morkels did on it could (acquisitive prescription apart) have prejudiced their use of the ground at any future time. is derived largely from Roman law. and not one who is alert but incapable of acting. have a system of land registration which does not operate (or does not operate everywhere) in England may account for some of the differences. there is the question of whether or not the possession by Morkels is proved to have been adverse. The requirement that the possession be adverse is of great importance in the law of acquisitive prescription because it is one aspect of that requirement which. 529. I am of the view.bound to follow unless I believe it to be clearly wrong. D But English authority is an unsafe guide in a South African case relating to acquisitive prescription. But there are English statutes which play a part in many of the decisions there. upon Williams Brothers Direct Supply Stores. much may be done on it by others without demonstrating a possession inconsistent with the owner's title. It is true that the English law.. 17 . 159. more than anything else. which seems to be based upon that case. The phrase which appears in some of the authorities is 'adverse to the owner'. H Finally. The passage reads as follows: 'If the owner has little present use for the land. ensures that it is the 1972 (2) SA p478 COLMAN J idle and slovenly owner.' If that were our law. 4th ed. Reliance was placed. v Raftery.B. and about which I hold no such belief. it might well be destructive of the plaintiff's C claim. and B upon a passage. thus cultivating the land and later using it for training greyhounds may fail to be 'adverse possession'. Ltd. and even the decisions which rest on common law sometimes reveal developments and approaches which are in conflict with our own rules. I am not sure that it accounts for all. like our own. in Megarry on Real Property . that we have here another essential element in the plaintiff's cause of action which it has not proved. A contention put forward on behalf of the second defendant (I am not A sure whether counsel for the first defendant adopted it) was that possession is not adverse unless the acts of the possessor interfere with or are inconsistent with the purposes for which the owner intends to use the land. That was common cause in the present case. who may lose his property by prescription. but there is no doubt that what is required is possession adverse to the rights of the owner. nor the Government wished to make use of the disputed ground during the relevant period. in that regard. therefore. Ltd . p. The fact that we. because it seems clear that neither the Johannesburg Estate Co. (1958) 1 Q. E in South Africa.
478. or quieting a possession which he could never disturb'. for the purposes of the law of acquisitive prescription. so stated. 11th ed.. unless the owner has a legal right to prevent it. J. covers part (although not the whole) of the ambit of the maxim contra non valentem agere nulla currit praescriptio .. 749. (1881) 6 A. 773. B The maxim reflects the English common law.. 740 at p. I think. Such user is there contrasted by WATERMEYER. supra . and the ratio decidendi was that he had not been dispossessed within the meaning of that statute. C. have been decided differently from the way in which they were decided. there is a reference to the concept of adverse user at p. p. 7th ed.J.. shows that the decision did not rest simply (if it rested at all) upon an interpretation of the term 'adverse'. supra . FRY. Without myself attempting a full definition (which is not necessary for the purposes of this case). I am satisfied. referred to and justified the maxim in language which appears to me to be consonant with the principles of South African law. and from Salmond on Jurisprudence . In none of our cases. with occupation 'by virtue of some contract or legal relationship such as lease or usufruct which recognises the ownership of another'. it is plain good sense to hold that a man who can stop an C asserted right or a continued user and does not do so for a long time. 1972 (2) SA p479 COLMAN J Other authorities show that the concept of non-adverse use or occupation has a wider field of application than that exemplified in the dictum of WATERMEYER. In Dalton v Angus. at p. 18 .C. note (k) . In Malan v Nabygelegen Estates. I go so far as to say that A no use. 574.. 680. p.. many of our cases would.J.A study of the judgments in the Williams Brothers case.. The proposition. C. Legal Maxims . occupation or possession is adverse.. or as to whether or not the owner had been dispossessed. The real enquiry was whether. may be told that he has lost his right by his delay and his negligence. That appears from Broom. that the H principle as stated in the passage which I have quoted from Megarry forms no part of our law. as far as I am aware. But there is no sense in binding a man by an enjoyment he cannot prevent. But the learned CHIEF JUSTICE was not there propounding an exhaustive definition of 'adverse user' or its contrary: he was merely giving familiar examples of user which would not be adverse. He is reported. therefore. the owner had been 'dispossessed'. in F terms of a relevant statute. as having said this: '. And if the law had been as indicated in the passage quoted above from Megarry . was there enquiry into or debate about the question whether or not the claimant's use of the land G was in conflict with the purposes for which the owner intended to use it.
9. accepted and applied the following definition of 'adverse user' in Bell. 1880 Foord 120. without comment. J. And there is at least F one of our venerable text writers who unequivocally quotes the rule or part of the Roman-Dutch law. 51. 887 and under the heading 'Prescriptie. But Wessels in his History of Roman-Dutch Law . C. a work of Carpzovius which is not available to me. 19 . says that acquisitive prescription does not run against 'those who are disqualified from asserting their rights'. of the rule embodied in the maxim. as part of our law. at p. 823. wherein the writer. DE VILLIERS. appears to deal with extinctive prescription) propounds the rule in the full terms of E the maxim. 4th ed. South African Legal Dictionary: 'the use and enjoyment of a thing without molestation by. 148 .J. The reasoning of FRY. I refer to van Zurch .11. Neither Voet nor van der Keessel . 643 refers to 'the rule praescriptio non currit contra non valentem agere' and seems to indicate that it is part of our law. But his reasoning and the range of examples he cited seem to 1972 (2) SA p480 COLMAN J me to indicate an acceptance.. H Lee. although both writers recognise specific cases falling within the ambit of the rule. by Lord PENZANCE at p. and Lee and Honoré on Property . In the 4th (1764) edition of van Zurck's Codex ..P. 803 and by Lord BLACKBURN at p. supra . inter alia . para. J.' In De Jager v Scheepers and Others .3. in his Introduction to Roman-Dutch Law . was approved in Dalton v Angus.. contra non agere valentem '. together with another well-known one. 44. at p. XIII. when dealing with acquisitive prescription (a passage cited to me from Voet . pp.D Having quoted the maxim. says: ' non currit praescriptio. In giving his reasons for that conclusion he did not state the rule in the wide terms of the maxim. held that acquisitive prescription does not run against a fideicommissary while the fideicommissum is in force. who appears to have been the author of an important work on the civil law of the Netherlands first published in 1711. we find para.. and as authority for that proposition he quotes. Verjaring. and in A conflict with the rights of the owner thereof'. Verloop van G Tyd'. say: 'Time does not run against minors or others who are not in a position to assert their rights. the learned Judge went on to say that they showed that 'prescription and assent are only raised where there is a power of prohibition'. 1960 (4) SA 261 (N) . And in Payn v Estate Rennie and Another . BROOME.
and the occupation of the ground had constituted no infringement of such H rights as it retained.. It was entitled neither to authorise nor to permit the use of the ground by the plaintiff. not in full ownership. and to permit the use. therefore. Thus the Johannesburg Estate Co. The freehold owner was the Johannesburg Estate Company Ltd. It will be remembered that during the greater part of the allegedly prescriptive period the disputed ground was held by the Government. no case of adverse user had been made out ( per FAGAN. but an exception to her declaration was upheld. time did not run against the freehold owner unless the occupation of the ground by Morkels was in conflict with the legal rights of that owner. its possession was adverse to the rights of the freehold owner. There. trespass being an infringement of possession rather than of ownership. van Zurck supports the case of the defendants. would have had no right to interfere with the use of the disputed ground by Morkels or by anyone else. and as that use was not alleged to have prejudiced the reversionary rights of the owner. The fact that the Government later acquired freehold title does not detract from the validity of that proposition. is illustrative of the relevant principle. during the currency of the F leases. but under a B registered long lease. the plaintiff must show that during that part of the relevant period.A. unless the use was in breach of some condition in the leases or was such as to prejudice its residuary rights as owner. one of the grounds being that the possession had not been adverse to the rights of the owner. once more. an owner who has parted with possession cannot sue for trespass unless he can show that E his reversionary right to possession is injured by the trespass (see Thomas v Guirguis . 1954 (4) SA 596.. It seems to me that the same reasoning must apply in a case where the owner's right to use. 606). Ltd. had no rights in respect of the surface. In order to succeed. if it had indeed parted with possession in terms of the leases. therefore. but under a lease. has been suspended. In the work to 1972 (2) SA p481 20 . Ltd. The registered owner. The reason was that the ground was held under mining title. And here. have to eject a trespasser or otherwise to terminate his occupation after it had parted with possession of the ground under registered long leases? There is ample authority for the proposition that. J. C But in terms of the rule which I have been discussing. as here. and in terms of the Gold Law the rights to the surface were vested in the State. not under the Gold Law. at p. so that the owner had the right and the power to terminate such occupation. of the ground.. But what D right did the Johannesburg Estate Co. The decision of the Appellate Division in Swanepoel v Crown Mines Ltd . the plaintiff claimed to have G acquired an area of land by acquisitive prescription. though not precisely in point. 1953 (2) SA 36 (W) ).I interrupt my citation of authority to discuss the relevance of the rule to the case before me.
184 of the report. and at the page cited. the defendant relied upon prescription. and in particular upon a failure to appreciate the fact that there were two alternative defences raised in that case. C seems to me to be in conflict with the authorities which I have cited and with what is said to be the rationale of acquisitive prescription. the owner of the dominant tenement coming on his property to exercise certain rights. firstly. at pp. In holding that the plea of prescription was not excipiable the Appellate Division had to E consider the plea on the assumption that the grant did not bind the plaintiff. die het goed van den verhuurder van een derden had laten praescriberen. schaad den verhuurder niet. is in conflict with the approach I have been enunciating. alternatively. as appears D from the top of p. 567 of the report. tegengeworpen zynde. was binding upon the plaintiff. But. and is in fact obliged to tolerate. which reads as follows: 'Praescriptie den huurder. 1911 F A. in my view. supra: 'The effect of this judgment is accordingly that the mere fact that B the owner of the servient tenement is unable to prevent. Hence. That appears from the middle of p. Nor. if the grant was not binding upon the plaintiff. it alleged. I would say that it is not the law. The owner of land which was riparian to a stream was there held to be entitled to restrain the pollution of the stream which.' That. there was no room for an approach to the question of prescription on the footing that the defendant was exercising rights or committing acts which the plaintiff was obliged to tolerate. the writer cites a work by Carpzovius which is not available to counsel or to me. It was argued that Wynne v Pope . It seems to have been based on a misreading of Malan's case. the case seems to me to be distinguishable from the one with which I am concerned because the plaintiff owned riparian ground which it had not let to anyone. one finds the following observation about the effect of Malan v Nabygelegen Estates.' A Again. as I read the judgment. between the point of pollution and the ground which it had let. conflict with the statement of the law which I have set out. with great respect to the learned Judge who propounded it. was detrimental to the health of some of its tenants who occupied land some two miles downstream of the place at which the pollution was taking G place. upon a grant of a right to take water. 1960 (3) SA 37 (C) . the plaintiff had in no way divested itself of the right to 21 . The defendant relied. XII. and it follows that in respect of such ground. and it is true that in that case. 178. which (it averred). 40 to 41. quite apart from other grounds of distinction which have been raised in argument. But. at any H rate. does the case of Salisbury Municipality v Jooala . in so far as it may purport to be a general proposition of law.D. I find para. does not thereby render it impossible for the owner of the dominant tenement to claim to have acquired such rights by prescription.COLMAN J which I have already referred.
9. wrongfully assumes occupation of the property. who is vested with the right to eject anyone who. Morkels' occupation was adverse to the rights of the Johannesburg Estate Co. in addition to the registration of the leases. It was the contractual duty of the owner to have the trespasser ejected. p. I say that because at the time when the lease was entered into. thereafter.. I am not sure. however. has argued that. that the mere existence of a lease does not negative the right of the registered owner of land to eject a trespasser from that land. prescription might well have run against it. 1956 (4) SA 273 (N) . and at the time when it was registered. and not the owner. But even if I am wrong in that regard. Of possession. but it was held that the registration did not divest the freehold owner B of locus standi to eject the respondent from the leased property on which he was assumed to be a trespasser. and to be consistent with modern concepts of traditio in respect of immovable F property as recognised in such cases as Breytenbach v van Wijk . in my view. There is a dictum on p. the respondent was already in occupation. to divest the Johannesburg G Estate Company Ltd. 1960 (1) SA 288 (N) . In the first place he argued. counsel invoked Bodasingh's Estate v Suleman . constitutes a transfer of possession of the leased property. Thus neither the contract nor its registration constituted delivery to the lessee of free and D undisturbed possession. and he must consequently have had a legal right to do so. on the authority of 1972 (2) SA p482 COLMAN J Jadwat and Moola v Seedat . whose industry and ingenuity in this case was matched only by that of his opponents. That view seems to be supported by Fockema Andreae in his Oud-Nederlandsch Burgerlijk Recht . 3rd ed.. and if it had neglected to do so. pp. I incline strongly to the view that when the leased property is unoccupied. 192. That point is made at p. and so vested him with possession. despite the long leases. the registration of a long lease. very little was required. It must be shown that the owner parted with possession to the lessee. 291 of the report which appears to suggest that the registration of a long lease can never constitute such delivery of the leased premises as will divest the owner of possession. 547. 290 of the report.. 1923 AD 541 at p.interfere with the nuisance. According to van Oven. a mere pointing out of the ground would have 22 . without anything more. Ltd. 1906 ed. There a long lease had been registered. so that it E is the tenant. A In response to the suggestion that the registration of a long lease constituted a symbolical delivery of the leased property to the lessee. the real basis of the decision. that the Court C intended to lay down so wide a proposition: clearly it was not necessary for it to do so on the facts before it. 128 . Senior counsel for the plaintiff. Leerboek van Romeins Privaat Reg . and it was. and he based that contention on more than one ground.
and there is no reason to think that our own law requires more. therefore. even if the registration of the lease did not of itself make him the possessor of the open ground. storing of goods and E necessary stables'. There is no evidence which tells me whether or not there was a pointing out or any other physical transfer of possession from the Johannesburg H Estate Co. retained possession of the disputed ground during the currency of the lease. storing of goods and stabling.sufficed for that purpose in the later Roman law. supported that argument. Morkels used the ground for activities incidental to the warehousing. And it must be remembered that the onus is on the plaintiff to prove adverse possession by Morkels. supra . in my judgment. all that I need say is that it is a circular argument. It was suggested that Salisbury Municipality v Jooala. could lead to acquisition by prescription and thus prejudice C the owner's reversionary rights. one Evans. It is not unlikely that in one way or another Evans received possession. and to that end it had to prove that possession. Lastly. but I have already said enough about the facts of that case to show that that is not so. if allowed to continue. to prevent the occupation by Morkels because that occupation. is this: even assuming that the A Johannesburg Estate Co. was vested in the owner. and the only consent given was for the limited purposes of 'warehouses. it is said that the freehold owner had a right to prevent D Morkel's use of the ground because that use was in conflict with the leases. the conveyance 23 . throughout the relevant period. it begs the question by assuming the correctness of the proposition which it is intended to prove. Ltd. But it is common cause that they also used the ground for purposes incidental to another business activity . to prove that the registered owner had a legal right to eject Morkels. even if possession had passed to the tenant under the leases. to the original lessee.namely. Ltd. Assuming that something more than the registration of the leases was required to divest the 1972 (2) SA p483 COLMAN J owner of possession. it was for the plaintiff. The leases prohibited the carrying on of trade or business on the lots without the consent of the lessor. there is no proof and. it would not have been manifest to it (as the law of acquisitive prescription requires) that Morkels were on the ground without any valid title derived from the lessee. Yet another reason why I regard the contention of the plaintiff's counsel on this point as unsound. The penultimate contention was this: that the freehold owner had the right. For the rest. no probability that that 'something more' did not take place either when Evans held the leases or during the time when the Government was the lessee. I shall refer to authority in support of that point when dealing with the final B contention put forward by plaintiff's counsel.
. There was no proof that upon reasonable inspection the freehold owner would have been able to see that the land was being used. to carry to the mind of a reasonable person. There was.... But counsel for the defendants rely.. under a sublease or precarious grant by the Government. 721 . therefore. Wentzel. Plaintiff's Attorneys: Webber. in that regard. or what G should have been brought to his notice had he visited the area and exhibited ordinary care in looking after his property. coupled with an authorised. supra at pp.. Second Defendant's Attorney: Deputy State Attorney.. can be regarded as reasonable notice of the A setting up of an adverse claim to the ground. if resistance to H it is intended'. The costs are to be taxed on the basis that each of the defendants was justified in employing two counsel. which consist largely of extracts from earlier cases: '. I have B come to the conclusion that I should not do so. I think. by my view that the documents which were primarily introduced for the purpose of showing interruption in 1932 and 1940 had some relevance to an issue on which the plaintiff has failed. nonprecarious tenure or adverse user. some act or acts of appropriation so patent as to constitute reasonable notice to the owner and others of the setting up of an adverse claim to the land. conduct in breach of the leases which the F freehold owner had a legal right to prevent. Here there was user by Morkels which would have been manifest enough to anyone who looked at the ground. But if the owner's representative had seen it. I should make some apportionment of the costs.of goods in circumstances unrelated to storage. the position must be regarded from the point of view of what was either actually brought to the notice of the owner.. within the terms of the lease. it would have appeared to him to be fully consistent with use of the ground. a mere contravention of the lease.. Turnbull & Co . in the exercise of my discretion. 24 .2. in any event... and so found prescription. I am influenced. and must therefore fail.. upon the following passages in Welgemoed v Coetzer and Others. partly in conjunction with an 1972 (2) SA p484 COLMAN J unauthorised type of business. Friedland. First D Defendant's Attorneys: Edward Nathan.. in that regard. No user can be sufficient unless during the whole of the period the user is enough. There must be proof of. That. My conclusion is that the plaintiff failed to prove civil possession. with costs. the fact that a continuous right of enjoyment is being asserted and ought to be resisted. I have given thought to the suggestion that. answers the plaintiff's last argument and relieves me of the need to decide whether. I grant absolution from the instance with costs in favour of both C defendants. Hofmeyr. Mansell & Lewis .. or apparently authorised user.
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