IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)

Case Number: 70153/16
Not reportable
Not of interest to other judges
Revised.
8/12/2017

In the matter between:

VALE HOLDINGS (PTY) LTD	APPLICANT

and

WESLEY TENDAUPENYU NO	1st RESPONDENT

R.J.M VELOSA NO	2nd RESPONDENT

THE TRUSTEES FROM TIME TO TIME	3rd RESPONDENT
OF THE MAKONDO PROPERTY TRUST

MABUNDA PROPERTY HOLDINGS (PTY) LTD	4th RESPONDENT

REMAINING EXTENT OF PORTION 5 OF THE
FARM WINDHOEK CC	5th RESPONDENT

Coram: HUGHES J

JUDGMENT

HUGHES J

[1] In this opposed application the applicant. Vale Holdings (Pty) Ltd, seeks to rescind and set aside a consent order in case number 58314/15 , duly granted in the urgent court on 24 July 2015. In addition to the aforesaid relief the applicant seeks to interdict the first, second and third respondents from utilising a gravel road that runs diagonally from west to east over the applicant's property.

[2] The applicant, the owner of an immovable property known as Portion 22 of the Farm Windhoek No.222 J.S Mpumalanga held under Title Deed T10437/2014, purchased the property from lndawa CC on 1 April 2014. The first and second respondents operate a guest house, Makonde Lodge, from Remaining Extent of Portion 28 of the farm Windhoek No.222 J.S Mpumalanga. The third respondent owns Remaining Extent of Portion 28 of the farm Windhoek No.222 J.S Mpumalanga.

[3] The rescission application and interdictory relief sought by the applicant is opposed by the first, second and third respondent. In addition, to their opposition they filed a counter - application seeking a servitude right to be registered over Portion 22 (a portion of portion 4) of farm Windhoek No.222 J.S Mpumalanga and the Remaining Extent of Portion 5 of farm Windhoek No.222 J.S Mpumalanga. They also sought condonation for the late filing of their opposing affidavit in the applicant application as they filed their opposing affidavit one day late.

[4] The case made out by the applicant for the rescission and interdictory relief is that in the urgent application from which the order sought the be rescinded emanates, the applicant consented to the order due to the fact that the first respondent misrepresented that they were holders of a registered servitude over the applicant's property. Hence, the consent order.

Condonation
[5] I propose to first deal with the first to third respondent's application for condonation. The respondents argue that on 7 October 2016 their attorney by way of correspondence advised the applicant's attorneys that their opposing affidavit would be out of time as they would only be able to file and serve same by 25 October 2016. The reason for the delay was explained in the aforesaid correspondence, that being that they were trying to locate a key witness to assist with information to be inserted in their opposing affidavit. They submit that no response was forthcoming from the applicant. On 20 October 2016 the applicant provided a response and requested further information from the respondents prior to allowing an extension to file their opposing affidavit. Thereafter applicant sent yet another letter on 28 October 2016. In the latter letter the applicant agrees to a postponement of the application from 31 October 2016 to 14 November 2016. In addition, they sought of the respondents, to file an application for condonation with their opposing papers to be filed on or before 11 November 2016. The opposing affidavit was one month out of time.

[6] The respondents argue that their explanation in support of their request for condonation is bona fide and sufficiently explains the delay in filing their opposing affidavit. They further argue that the matter is of importance to the parties, facts by both parties are necessary to adjudicate the dispute between them and they have good prospects of success with their counter-application.

[7] The applicant on the other hand argues that condonation is not merely for the asking. In fact, the applicant states that it had to persist that the respondents pursue the application for condonation which was also not done timeously and lastly the applicant argues that the respondents have not made out a case for condonation on the papers.

[8] I am mindful of what Holmes JA stated in Federated Employers Fire and General Insurance Co. Ltd & Another v McKenzie 1969 (3) SA 360 A at 362F-H that:
" ...the factors usually weighed by the Court include the degree of non-compliance, the explanation therefor, the importance of the case, the prospects of success, the respondent's interest in the finality of his judgment, the convenience of the Court and the avoidance of unnecessary delay in the administration of justice; see Meintjies v H.D. Combrinck (Edms.) Bpk. 1961 (1) SA 262 (AD) at 264A­ B; Melane v Santam Ins. Co. Ltd., 1962 (4) SA 531 (AD);"

[9] In the circumstances, my view is that this matter is of great importance to the parties, it also involves an issue which they seek to bring to finality and there are prospects of success in the resistance of the rescission and counter-application of the respondents. For these reasons condonation is duly granted to the respondents.

Rescission
[10] The applicant launched the rescission application on the premise that the respondents obtained the consent order by fraudulent means. The fraud being, that the first and second respondent stated as a matter of fact that they had a registered right of way/servitude over the applicant's property in their papers for the urgent application. It was this fraudulent representation that induced the applicant to consent to the order made in that urgent application. Sometime in September 2015 after the order, the applicant states, that it established that there was in fact no servitude in favour of the first and second respondents. In fact, it established that the servitude was in favour of the fourth respondent for Portion 28 and not for the respondent's property or portion, which was towards the west. For these reasons the applicant contends that the rescission ought to be granted as the first, second and third respondent fraudulently and or alternatively mistakenly attained the order sought to be rescinded.

[11] The respondents argue that the urgent application which they had launched which culminated in the order sought to be rescinded was one based on spoliation. They state that in that urgent application they had contended that they had been deprived by the applicant of the peaceful and undisturbed use of the access gravel road from the public road to the respondent's property. The gravel road transgressed the applicant's property from the public road and the respondents contend that they had been using that road, peacefully and undisturbed, since February 2007 until the spoliation by the applicant during June/ July 2015.

[12] An order taken by consent, if obtained by fraud or mistake can be rescinded, see Gollach & Gomperts v Universal Mills & Produce Co 1978 (1) SA 914 (A) at 922C­ D:
"It is obvious that, like any other contract (and like any order of Court}, a transactio may be set aside on the ground that it was fraudulently obtained. There is authority to the effect that it may also be set aside on the ground of mistake, where the error is justus."
The qualification lies in Rowe v Rowe 1997 (4) SA 160 (SCA) at 166H-I where it was said that:
"... it is trite that fraud as a ground for rescission of an order may take any form ... provided that the party concerned was privy to it and that the facts presented to the Court diverged from the truth to such an extent that the Court would have given a different judgment had it known the true state of affairs." [The case referred to are omitted]

[13] The respondents submit that they had correctly submitted, in their founding affidavit for the urgent application, that a servitude was registered over the applicant's property, as reflected in the title deed of the applicant, which was annexed. The applicant referred to this at paragraph 12.1 of the founding affidavit where they stated: " 12.1...the Applicants have enjoyed peaceful and undisturbed access and possession over the aforementioned road since a servitude has been registered over the First Respondent's property as is evident from a Title Deed of the First Respondent 's property a copy of which is annexed hereto ..."

[14] The aforesaid is confirmation of the respondent's submissions at paragraph [11] supra. Under no circumstances whatsoever, on a reading of the extract of paragraph 12.1 does the respondents, in my view, state that they have a servitude registered in their favour. All that they express as was argued was that "a servitude has been registered over the First Respondent's [applicants] property".

[15] This cannot be considered as a fraud as it has been confirmed by the applicant itself that a servitude is registered over its property on the eastern side of Portion 28. Neither can it be said to be a mistake, as it is a fact. In the circumstances the application to rescind the consent order must fail.

The Interdict
[16] In addition to the rescission sought, the applicant also applied for final interdict, where it sought to interdict the first, second and third respondent and their patrons from utilising the gravel road that ran diagonally from west to east over the applicants property directly in front of the house of the applicant.

[17] In order to satisfy the prerequisites of a final interdict, the applicant submits that as owner of the immovable property it has a clear right to sue which is a necessary as a prerequisite. On the contrary the respondents submit that in fact the applicant has not demonstrated a clear right. The reason being is that the applicant does not prove a clear right as the applicant's property is subject to servitude. As the applicants property has the servitude the dominant property is that of the respondent's and such the respondents argue that the applicant's property rights are subject to the respondents as the dominant. This is so, so says the respondents, as the applicant's ownership is subject to their right to access to the closest public road in terms of unregistered servitude or via necessitates.

[18] In respect to the prerequisites of irreparable harm and an alternative remedy, the applicant in all honestly could not make out a case at all. The submission advanced for the requisite of irreparable harm makes reference to the use of the gravel road being a danger to the minor children who stay on the applicant's property. It contended that their safety was of constant concern. This in my view is answered in the final requisite of no other relief or remedy. The applicant was called upon to discuss possible remedies the one offered by the respondents being in the form of a servitude to be granted to the respondents. In addition, the applicant was pointed to the urgent order that still stands, which made provision for safety measure to be adopted to alleviate the harm alluded to by the applicant. Thus, in my view, the applicant has failed to make out a case for the interdict. In the result, the application for an interdict is refused.

Counter-application
[19] In the counter-applicati on the respondents seeks to have a servitude registered over Portion 22 and the Remaining Extent of Portion 5 of the farm Windhoek No.222 J.S. Mpumalanga in favour of the Remaining Extent of Portion 28 of the farm Windhoek No.222 J.S Mpumalanga held under Deed of Transfer T25939/2007.

[20] The basis advanced for the registration of the servitude is that for the past 30 years the respondents and their predecessors in title utilised the gravel road route openly, peacefully without consent or force until the applicant committed the spoliation during June 2015, so argues the respondents. This argument is fortified by the respondents, who put up an affidavit of the erstwhile attorney, Mr Francois Van Der Berg. The attorney interviewed and obtained information from previous owners of the respondent's property and the property of the applicant and they confirm the use of the gravel road for the period of 30 years and beyond, as far back as 1937.

[21] According to Mr Van De Berg he established that the gravel road had a history of being used as an unregistered servitude which use or possession was uninterrupted for a period of 30 years. The respondents therefore submit that "the continuous use/possession of the said servitude road by the first respondent and/or predecessors has been nee vi, nee clam, nee pregario and adverse to the applicant and owner of Remaining Extent of Portion 5 of the Farm Windhoek CC." Thus, the respondents contend they have made out a case to acquire a servitude over the applicants property and that of Remaining Extent of Portion 5.

[22] The applicant made submissions to the request of the respondent's application for the unregistered servitude to be registered by virtue of acquisitive prescription in terms of the Prescription Act 68 of 1969, alternatively by virtue of necessity in terms of the common law. These being that there is a reliance on secondary facts to advance the respondents contention based on acquisitive prescription and thus there are no facts advanced. In addition, there is no basis for the registration of the servitude on the basis of necessity as there is an alternative road that may be used. Lastly, no compensation is offered.

[23] The respondents argue that there are requirements which ought to be met to succeed with an application based on acquisitive prescription. These being that there must exist civil possession as if one is the owner, uninterrupted possession by predecessors of a period of 30 years or which together makes up 30 years, which was exercised openly and whether the possession was adverse to the owner's rights. See Morkels Transport v Melrose Foods and Another 1972 (2) 465 at 470A-E:
"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, whether it has been shown that they were not occupying under a precarium during the whole or any part of the period, and whether it has been shown that the possession was adverse to the owner's rights. These three elements in the plaintiff's cause of action are not mutually exclusive. To some extent they merge into and coincide with one another; indeed, as will later appear, Iam of the view that the concept non precario is but a specialcase of the wider concept 'adverse'. 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. Ishall therefore discuss them, as far as that is practicable, as if each were a separate and self-contained requirement. It will be convenient to begin with the requirement nee precario . 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. Unfortunately, Mr. E. Markel and some others who might have been able to speak (one way or another) on this issue are no longer alive; but I must decide the matter on such information as is available. The nature of a precarium is explained in Malan v Nabygelegen Estates, 1946 AD 562. A person holds precariously when he holds on sufferance or by virtue of a permission which is revocable at the will of the granter. The permission may be granted expressly or tacitly (Malan's case at p. 573; Wynne v Pope, 1960 (3) SA 37 (C) at p. 41)."

[24] In dealing with the aforesaid requirements, in my view, the evidence of the predecessors being in possession, cumulatively, for a period on 30 years has been demonstrated by the respondent by virtue of the submissions made and confirmed by some of the predecessor. This possession by the predecessors was also demonstrated to be uninterrupted and the possession thereof was openly exercised as if the predecessors had been the owners. This is clearly advanced in the confirmatory affidavit of Mr James Noel Keaveney who was a member of the close corporation lndawu CC. This close corporation purchased Portion 22 and registration thereof took place on 22 September 1994. He stated that the gravel road at the centre of this dispute was used by owners of the Remaining Extent of Portion 28, that being Mr Jacobus Pieter Botha. Mr Botha sold it in 1999 to new owners being Ampy Investments CC who also continued to use the road up until lndawu CC sold Portion 22 in 2014 to the applicant being Vale Holdings (Pty) Ltd. Mr Keaveney states the following in his affidavit:
"...The said road was used openly, without consent, without force and on a regular basis and in particularly over weekends when members of Ampy Investments CC, their families and friends visited the farm. This road gave access from the farm to the Tonteldoos Road, which was the closest public road."

[25] Mr Botha states in his supporting affidavit that his deceased father acquired Portion 28 as far back as 1975. He then purchased it from his mother in 1995 after his father death in 1994. He stated that Portion 28 during those years had been used as festival grounds for members of the local farming community. The communities' use of the property emerged from as far back as 1937 when it was purchased by Windhoek Dingaan's Fees Vereeniging. This lasted until Mr Botha purchased the property. The gravel road, he states, was used by the public at large to gain access festival grounds on Portion 28. He stated that he lived permanently on the property during 1979 to 1980 and he, his family sisters and friends used the gravel road to gain access until he sold it to Ampy Investments CC.

[26] In the circumstances, for the reasons set out above, I find that the respondents have made out a case for the relief sought in their counter-application on the basis that had proven acquisition of ownership by prescription. Hence, I do not deem it necessary to address the alternative basis of necessity.

[27] In the result I grant the following order:
1.	Condonation is duly granted to the first, second and third respondents.
2.	The application for rescission and an interdict by the applicant is dismissed with costs.
3.	The counter-application of the first , second and third respondent's succeeds and the relief sought is granted with costs

_________________
W. Hughes
Judge of the High Court Gauteng, Pretoria