4.
Directing the Respondent to pay the costs of this application on the scale as between Attorney and client.
The Applicant is the owner of property situated at 8 Somerset Street, Grahamstown. It is more fully described as the remaining extent
of ERF 2153, Grahamstown. He purchased this property from Mr Smith by Deed of Sale on 9 October 1979, the registration of the transfer
was recorded on 15 January 1980. Mr Smith had held the said property since 16 January 1974.
The Respondent is the owner of property situated at 6 Somerset Street, Grahamstown, which is more fully described as ERF 2152, Grahamstown.
The two properties stand side by side separated by a passageway (“the passage”) which is part of ERF 2152, and upon which
6 Somerset Street is situated. The said passage has been arched at the entrance presumably for aesthetic reasons.
It is common cause that the Applicant enjoyed access to his house through the front door of the house and through the said passage
which accommodates a wooden gate through which entry into the Applicant’s property is gained and which leads to his back door.
It is undisputed that Mr Smith, Applicant’s predecessor-in-title, openly and as though he was entitled to do so, exercised the
rights and powers of a person who has a right to servitude is entitled to exercise and had free and unimpended access to 8 Somerset
Street, Grahamstown from the rear of the house through the passage across what was then the property of the late Edith Blanche Ross,
the predecessor-in–title of the property at 6 Somerset Street, Grahamstown.
It is further undisputed that the Applicant also enjoyed free and open access and use of the passage until early November/December
2006 when the Respondent closed it.
Until then the Applicant (and his employees) openly exercised unimpeded access to his property through the passage as though he was
entitled to do so.
Early in December 2006, the Respondent approached the Applicant about a copper pipe that ran over the passage and prevented the operation
of the remote controlled gate he proposed to install. At the same time he informed the Applicant of his intention to deny him use
of the passage.
The Respondent purchased the property at 6 Somerset Street, Grahamstown on 4 March 1994. Shortly thereafter he let it out to students
and has continued to do so since.
In November 2006 he sought to effect alterations to the property and it is his case that he only then discovered the Applicant was
using the said passage.
The crisp issue between the parties is whether the Applicant has acquired a servitude over the passage by prescription or not.
The Respondent’s case is that he did not know that the Applicant was using the passage at all until November 2006 and if he
had known about it, he would have stopped it. He claims in the circumstances, that the Applicant can consequently not claim the servitude
by prescription.
Section 6 of the Prescription Act, No. 68 of 1969 (“the Act”) provides as follows:
“Subject to the provisions of this Chapter and of Chapter IV, a person shall acquire a servitude by presumption if he has openly and
as though he was entitled to exercise the rights and powers which a person who has a right to such servitude is entitled to exercise
for an uninterrupting period of thirty years which together with any periods for which such rights and powers were so exercised by
his predecessors–in–title, constitutes an uninterrupted period of thirty years”
Neither Chapter II (in which section 6 falls) nor Chapter IV affects the issue(s) to be determined herein.
It is common cause that the right in question is that of a right to a praedial servitude.
In the circumstances it is a right to a servitude for which various periods by predecessors-in-title could be taken into account if
they were consecutive and uninterrupted and totalling at least thirty (30) years.
The Applicant has been the owner of 8 Somerset Street, Grahamstown since 9 October 1979. It is not disputed that he has exercised
the rights and powers of a servitude over the passage in question openly as though he was entitled to do so for a period of at least
twenty-seven (27) years up to 1 November 2006.
Prior to 9 October 1979, Mr Bruce Matthew Hastings Smith was the owner of 8 Somerset Street, Grahamstown. He acquired ownership thereof
from one Thomas Coombs on 16 January 1974. Mr Smith was the owner thereof for a little more than five years. This is also undisputed.
It is also undisputed throughout his ownership of 8 Somerset Street, Mr Smith exercised the rights and powers over the passageway
between the respective properties which a person who had the right to a servitude is entitled to exercise without having obtained
consent from the late Mrs Edith Blanche Ross and without payment in respect thereof to her.
The passage between the respective properties of the Applicant and Respondent was being used openly as though those who were so exercising
the rights and powers had a right to such servitude and entitled to exercise such rights and powers.
The arithmetical calculation therefore of the combined periods of use of the passage by the Applicant and Mr Smith is in excess of
thirty (30) years.
Miss Dukhi who appeared on behalf of the Respondent set out the law in her argument and raised a number of issues. She also referred
to a number of requirements necessary to assert the servitude.
However the Respondent’s case is essentially that he was unaware that the passage was being used by the Applicant and therefore
any allegation of him being entitled to the servitude by prescription because it was acquired through an uninterrupted use over a
period of thirty (30) years cannot be sustained. For the same reason, the Respondent argues, the Applicant cannot rely on any period
during which the Applicant’s predecessor-in-title exercised the same rights and powers.
Miss Dukhi argued that in allowing the said servitude, the Respondent’s right to privacy and security would be infringed.
She also argued that all the Applicant needs the servitude for is to avoid his domestic workers, including the gardner using the front
entrance and that this does not compete as against the inconvenience this causes to the Respondent.
She also argues that the servitude is not necessary as the Applicant has an alternative to the servitude, viz.the front entrance. Aside from this fact, the servitude would not constitute a permanent advantage to the Applicant because of the
front entrance alternative.
The argument relating to security, convenience to the Applicant, alternative entrance and that the servitude does not constitute a
permanent advantage can be dealt with together. Firstly, by the very nature of a servitude, rights to privacy and security are indeed
affected. This is integral to the question of the existence of the servitude. If it is found that the servitude does not exist then
these rights would not be affected. Secondly, the assertion that there exists an alternative way to enter the Applicant’s property
is also putting the cart before the horse. Again if it found that the servitude does not exist then the question of alternative access
does not concern the Respondent. If it is found that it indeed exists, then by its very nature and existence it provides a second
means of access to the Applicant’s property. In regard to whether the servitude is a permanent advantage to the Applicant,
the same argument applies.
If one has regard to Section 6 of the Act, it seems to me that while all these factors could have been important to establish a servitude
(of this kind), they no longer assist in determining whether a servitude is in existence or not.
This brings me to the Respondent’s main argument that he was not aware of the Applicant’s use of the passage and therefore
the thirty year period required to claim the servitude has not been completed.
Mr Smuts who appeared for the Applicant argued that it did not matter if the Respondent was aware or not because as long as the combined
periods of use of the passage as envisaged by Section 6 of the Act at least thirty (30) years, the servitude has been consolidated
and acquired.
If he is correct then the combined periods amount to more than thirty years in which case the servitude must then be found to have
been acquired by prescription. On this approach, all that is required is for the Applicant to have proved that the exercise of the
right as envisaged by Section 6 of the Act occurred over a combined period of at least thirty years.
However Miss Dukhi referred to the argument on behalf of the Respondent in Bisschop v Stafford 1974 (3) SA 1 AD page 3 where it was submitted (by counsel) that “the acquisition of a right by prescription arises out of the neglect of
a servient owner in protecting his rights when he has knowledge or should reasonably have knowledge of the invasion of his rights”.
It does not appear that knowledge is an important factor to be considered. It seems to me that the submission (in that case) was
made merely to strengthen the Respondent’s case in the appeal rather than making it a principled issue to be relied upon.
If this is indeed the proper approach as postulated by the Respondent, (which is doubtful) then the question is whether the Respondent
ought reasonably to have been known that his rights were being invaded.
The Respondent had owned the property at 6 Somerset Street, Grahamstown for approximately twelve (12) years before he raised he informed
the Applicant of his intention to close the passage.
It is undisputed that the Applicant exercised the rights and powers to use the passage as did his predecessor-in-title, openly and
as though he was entitled to do so, as a person who indeed had a right to such a servitude and that he did so throughout the twelve
year period.
The Respondent ought to have had knowledge of the Applicant’s conduct in the light of this substantial period of time. It is
difficult to accept that he did not know this. He certainly ought to have known about it in the circumstances.
The Respondent does not explain why or how it came about that he did not know this before November/December 2006. To refer to the
submission referred to by Miss Dukhi, the neglect of the Respondent in protecting his rights when he … should have had knowledge
of the invasion of his rights gives rise to the acquisition of a right by prescription.
It is noteworthy that the Prescription Act 18 of 1943, the predecessor of the Act, does not contain a corresponding section to section
6 of the Act. It is significant that all the cases referred to on behalf of the Respondent are cases which deal with matters provided
for in Act 18 of 1943 and in respect of which it had application.
To date, there is no reported case law which deals with section 6 of the Act.
In my view, the advent of section 6 of the Act has superceded all those principles and approaches referred to on behalf of the Respondent,
and has rendered them inapplicable in matters such as this. All a person claiming the rights which flow from section 6 of the Act
has to do, is to prove that he or she has fulfilled at the requirements as set out therein.
Consequently it seems to me that whether the matter is approached on the basis of the argument raised on behalf of the Respondent
or in applying the ordinary tenants of Section 6 of the Act, as suggested by Mr Smuts, the Applicant has indeed acquired the praedeal
servitude over the passage. He is therefore entitled to the relief save for that which relates to costs.
While the Applicant has sought an order directing the Respondent to remove any obstacle which prevents the exercise of the servitude,
he also seeks an order directing the Respondent to provide equipment so that he could exercise the servitude. In any view, if the
former is granted, then the latter would serve no purpose and would then be rendered unnecessary. It would therefore seem appropriate
to grant the former only.
The Applicant has asked for costs on an attorney client scale. It do not think that the Respondent was unjustified in defending the
application. It seems that he was of the view that the Applicant was not entitled to the relief sought and therefore opposed the
applications. I do not think that he can be overly criticised and to the extent that he should be penalised with a special costs
order. I think the normal costs order will suffice.
In the result, I make the following order:-
1.
The Applicant is declared to have acquired a servitude of right of way to the gate at the rear of his property being ERF 2153, Grahamstown,
along the passageway belonging to the Respondent on ERF 2152 Grahamstown, which traverses the northern boundary of the Applicant’s
property;
2.
The Respondent is ordered to remove any physical obstacle which prevents the Applicant from exercising such servitude;
3.
The Respondent is ordered is ordered to pay the costs of the application.
_________________________
R PILLAY
JUDGE OF THE HIGH COURT
For the Appellant
: Adv Smuts
For the Respondent
:
Ms Dukhi
Heard on: :
21 June 2007
RTF format