Bennett Pringle (Pty) Ltd v Dreyer and Others (2737/2006) [2007] ZAECHC 41; [2008] 1 All SA 32 (E) (14 June 2007)

FORM A

FILING SHEET FOR EASTERN CAPE

JUDGMENT

ECJ: 157

PARTIES: BENNETT PRINGLE (PTY) LTD

AND

JOHANNES FREDERICK DREYER + 3 OTHERS

Registrar: 2737/06

Magistrate:

High Court: EASTERN

CAPE DIVISION

DATE HEARD: 25/05/07

DATE DELIVERED: 14/06/07

JUDGE(S): Jones

J

LEGAL REPRESENTATIVES –

Appearances:

for the Appellant(s): ADV: Rorke

for the Respondent(s): ADV: Paterson

Instructing attorneys:

Appellant (s): WHEELDON RUSHMERE & COLE

Respondent(s):

NETTLETONS

CASE INFORMATION -

Nature of proceedings :

DECLARATORY

ORDER

Reportable

In the High Court of South Africa

(Eastern Cape Division)

(Grahamstown High Court) Case No 2737/2006

Delivered:

In the matter between

BENNETT PRINGLE (PTY) LTD Applicant

and

JOHANNES FREDERICK DREYER 1ST Respondent

JOCK ERIC DANCKWERTS 2ND Respondent

DOUGLAS CHRISTOPHER LOUW 3RD Respondent

ARTHUR G MOORCROFT 4TH Respondent

SUMMARY: Administrative review of decision of fencing board – board holding that a fence was a ‘give and take fence’ in terms of section 16 of the Fencing Act 31 of 1963 – jurisdictional facts required by the Act for such a fence were not shown to be present – the board had had regard to irrelevant considerations – the application for review was successful.

JUDGMENT

JONES J:

[1] This is an application to review the decision of the fencing board on a boundary dispute between two farmers. The applicant also seeks certain alternative declaratory relief with similar effect.

[2] The applicant and the 1st respondent own neighbouring farms which share a common boundary. This boundary is marked ABC on the diagram annexure A to the applicant’s founding affidavit. The diagram shows the applicant’s farm to the north of the line ABC, and the 1st respondent’s farm to the south of it. The applicant wished to build a fence along the boundary line AB as shown on the diagram. The 1st respondent objected. He contended that there already was a give and take fence between the points A, B and C which fixed the boundary between the farms. It is common cause that there is indeed a fence from A to B and from B to C which is also shown on the same diagram, but which does not follow a straight line between A and B. The 1st respondent contends that the existing fence between A and B is the de facto legal boundary for the purposes of the Fencing Act No 31 of 1963. The applicant says that the true boundary is along the straight line between A and B as shown in the survey diagram attached to the title deeds and which is reproduced as annexure A.

[3] The dispute was referred to a fencing board constituted in terms of section 29 of the Fencing Act. The 2nd, 3rd, and 4th respondents were the members of the board. They are farmers in the area, with practical knowledge of fencing. They have not participated in the review proceedings and no order for costs is sought against them. I shall refer to them collectively as the board.

[4] The dispute required a consideration of the provisions of the Fencing Act, section 16 of which provides:

16 Give-and-take line

(1) Where a dividing line between any two holdings is formed by a watercourse or river (not being of such a nature as to form a natural barrier for stock) or range of hills, outcrops of solid rock or kopjes, along which it is impracticable or inexpedient to erect a fence, the owners concerned may agree on a fair give-and-take line as a dividing line to be fenced in accordance with this Act, and, in default of agreement, any such owner may claim that the matter shall be determined as a dispute in accordance with the provisions of the Second Schedule.

(2) Any give-and-take line so agreed on or determined shall be deemed to be the boundary line for the purposes of this Act but shall not otherwise affect the titles to such holdings.

The Second Schedule provides for the constitution of a fencing board, made up of three farmers, to determine the dispute between the owners of adjoining farmland, and it provides (section 10 of the Second Schedule) that the determination of the board shall be binding on the owners. While I am by no means certain that the cases1 which have considered section 16 or its counterpart in the previous Act2 have yet said the last word on the meaning and scope of the section and its effect on registered title to farm property, I accept for present purposes, as have the parties and the board, that the object of the section is to provide a practical, common sense solution to disputes about the erection of fences which will determine the boundary line between farms for the purposes of the Act in cases where rugged terrain makes a fence along the survey boundary lines on the title deeds impracticable or inexpedient. If the existing boundary fence is a give and take fence within the meaning of section 16, it is the ‘fictional’ boundary between the applicant’s and the respondent’s farms for the purpose of the Act, and the applicant may not unilaterally move or remove it.3 If it is not, the boundary will be the line shown in the survey diagrams attached to the title deeds, unless a fence along it proves to be impracticable or inexpedient, and a give and take fence is as a result either agreed or determined.

[5] The two farms were previously owned by a single owner. The applicant acquired the northern property, Groenberg’s Vlei (portion 1 of Farm 25, Bedford) from the previous owner, Mr Warren Pearson. The respondent subsequently purchased the southern property, Millness, Portion 1 of Farm 30, Bedford at a judicial sale on 9 February 2001. The existing fence along A, B and C was constructed by Mr Pearson or his predecessors in title some time during the last hundred years, at a time when both farms were owned by a single owner. The fence between A and B encroaches considerably into the applicant’s farm, separating off a valley of about 40 hectares of land which, according to the title deeds, is part of the farm which he purchased. The respondent considers that he is entitled to that land by reason of the situation of the existing fence.

[6] The parties formulated the issues to be determined by the board. On 13 May 2002 the applicant’s attorneys formally gave the respondent’s attorneys notice of the dispute to be determined by a board constituted in terms of the Second Schedule of the Act. The following is a restatement of the terms in which the notice set out the issue:

The applicant alleges that the boundary fence separating the two farms was rerouted by the owner for better camp management, as both properties were at the time owned by a single owner. Now that the respondent’s farm has been transferred to a new owner the legal diagram and title deed boundary prevails over the convenience boundary aforementioned. This means that presently the respondent is using the portion of the property up to the convenience boundary and is thus using a portion of the applicant’s property. The applicant wants to reclaim his portion up the legal boundary, which is between the points A and B as physically checked by the surveyor against the diagram deed. He wishes to build a new fence along the line pointed out by the surveyor, i.e. from krantz line at B in a straight line thereon through the ravine to points placed on line to beacon A. For ease of reference the line is marked in red on a diagram.

This notice was in response to a letter from the respondent’s attorneys dated 28 November 2001 objecting to the applicant’s intention to erect a fence between points A and B. The letter of 28 November 2001 alleged that the de facto boundary between the two farms was erected on the top of a line of cliffs, that the fence was in good order, and that it was an adequate boundary. It noted that the applicant did not accept that that fence represented the true boundary and stated that, in that event, it was not entitled to erect whatever fence it pleased, but was obliged instead to comply with the provisions of the Fencing Act.

The parties were accordingly at one on the nature of the dispute, which the applicant’s legal representative encapsulated as follows in the written submission placed before the board:

‘The issue that the Board must decide is whether the existing fence along the edge of the krantz line starting near beacon A and ending at beacon B is the boundary or whether the direct line between the beacons A and B is the boundary.’

[7] It is clear from the terms of its findings dated 11 September 2003 that this is also how the board understood the issue before it. The dispute was which of the two specified lines was the boundary line. The board did not consider and was not called upon by the parties to consider whether or not there should be a new give and take fence between A and B, and if so where it should be. It was also not called upon to decide whether or not the existing fence between A and B, whatever kind of fence it might have been in the past, would in future be a give and take line which formed the boundary between the two farms, even though it was not properly the boundary line before. The board’s three main findings of fact were, first, that the straight lines A-B-C represent the surveyed boundary between the two properties; second, and notwithstanding the first finding, the existing fence line along the krantz line between A-B-C is a give and take boundary, albeit not a 50-50 give and take boundary; and third, in view of its lack of experience and expertise in legal matters, the board was not in a position to rule which, in terms of the law, was the true boundary between the two properties, the surveyed (diagram) boundary on the one hand, or the existing give and take boundary on the other. It suggested that this should be referred to a legal forum.

[8] Mr Paterson sought to argue on behalf of the respondent that the findings of the board should properly be regarded not merely as a resolution of the dispute about whether the fence is the existing give and take boundary line, but also as a new determination of a give and take boundary fence under section 16, which is binding from now on. It is clear, however, from the parties’ terms of reference to the board, and from the board’s formulation of its findings, that that is not what the parties or the board intended. For that reason, nobody raised or considered the possible erection of a give and take boundary fence in alternative positions. As the parties understood it, if the existing fence between A and B was indeed a give and take line within the meaning of section 16, it was always the de facto boundary for present purposes, and it would remain so. They did not call upon the board to consider a new determination under section 16. That is why, in the end result, the board’s equivocation caused it to make a specific finding that in the interim, or in the event of the applicant not wishing to go to higher legal authority, the status quo should remain (i.e. the current fence along the krantz remains the boundary between the two properties). In other words, as far as everybody was concerned the boundary had already been determined.

[9] The seemingly equivocal nature of the board’s findings was largely caused by legal argument based on a point of issue estoppel having been raised before it, which was never the sort of issue that the Act intended a board to determine. It seems to me that this argument was irrelevant, and that it did nothing but cloud the issues and cause confusion. It was by reason of the resultant equivocation that Mr Rorke, for the applicant, found himself uncertain whether the board had made proper findings under the Act, and he submitted alternative prayers. He applied for a declaratory order that the parties were not bound either by the board’s findings of fact or by its interim decision on the status quo pending a legal ruling by a court. In the alternative he applied for judicial review. As I see it, the board was very much aware of the distinction between findings which the Act required it to make and which it was competent to make, on the one hand, and findings it should leave well alone on the other. It did its best to deal with matters of farming and fencing, and it took its finding that the fence was a give and take fence to its logical conclusion by ruling that this was the boundary unless, in effect, the court should determine otherwise. In my view, the board’s findings of fact determined where the boundary fence is, and therefore is binding on the parties and not subject to appeal. The issue before me is, therefore, whether that finding can be reviewed and set aside on grounds of irregularity in terms of the Promotion of Administrative Justice Act No 3 of 2000.

[10] Section 7(1) of the Promotion of Administrative Justice Act requires a review application under the Act to be brought within 180 days of knowledge of the administrative decision. This application is out of time. Section 9 gives the court the discretion to grant an application for an extension of the 180 day period if the interests of justice should so require. The applicant brought such an application. In my view the interests of justice require that it be granted. This is not a case where the applicant has delayed unduly in the exercise his rights. The equivocal nature of the board’s conclusions and its invitation to the applicant to go to a legal forum for a final determination of his rights caused the applicant to issue summons out of this court without delay. The matter proceeded to trial, but the trial was then postponed in order to bring this application. There is no prejudice caused by the delay. The parties and the members of the board are still available. Evidence has not been lost. The applicant’s Mr Pringle Senior has died, but he gave evidence before the board and although there is no record everybody knows what he said. If the late review will ultimately give rise to the respondent incurring wasted trial costs (as his counsel suggests), he has the remedy of an appropriate costs order. In all the circumstances I can see no reason why, in the interests of justice, the applicant should not be afforded the right to rely upon the relief provided by the Promotion of Administrative Act if he can make out a proper case for it.

[11] In arguing that this is a proper case for a review in terms of section 6 of the Promotion of Administrative Justice Act, Mr Rorke’s contention was that the board’s finding that the fence is a give and take boundary fence was made without proof of the existence of the jurisdictional facts laid by section 16 of the Fencing Act as pre-requisites for a give and take fence. If that is so, this is the kind of mistake of fact which is properly reviewable. It is not an appeal disguised as a review (Pepcor Retirement Fund and another v Financial Services Board and another).4 The irregularity makes section 6 of the Promotion of Administrative Justice Act applicable because the board made the mistake of ignoring material facts and taking irrelevant facts into consideration, and these mistakes had the result that the board reached a conclusion which had no rational connection with the requirements of section 16 of the enabling legislation.

[12] What are the jurisdictional facts of section 16, the relevant requirements necessary for a rational connection between the section and the board’s decision? There must be present

a situation where the dividing line between two properties is formed by certain geographical features – a watercourse, or a range of hills, outcrops of solid rock, or kopjes; and

a situation where it is impracticable or inexpedient to build a fence along that dividing line; and

either (i) an agreement between the two owners on a give and take line as the dividing line, or (ii) a determination by a board on a give and take line in default of an agreement; and

the requirement that the agreed or determined give and take line must be fair.

The determination by the board that the existing fence was a give and take line in terms of the section could not have been made properly and regularly as required by the section if these pre-requisites were not present. In my view, the conclusion is irresistible that some, if not all of them, were not present. Requirements (c) and (d) were clearly not present. There could not have been an agreement between two owners that the fence was a give and take dividing line, because at all material times there was only one owner. For the same reason, there could not have been a determination. Whatever Mr Warren Pearson may have thought about the matter, whatever he may have said about the matter in his evidence, and no matter what he may have called the fence in describing it to the board, it was not and could never have been a give and take dividing line in terms of the section. Mr Pearson’s views were given as part of the motivation for the board’s findings. They were irrelevant and should have been ignored.

[13] With regard to (d), objective fairness is in my view essential. The existing fence cannot be a fair give and take dividing line because it deprives the applicant of 40 hectares of land which he purchased, for which he paid, and to which he is entitled in terms of his title deeds, and for which he gets virtually nothing back in return. The board acknowledged that the fence was not a 50-50 give and take boundary. That is so. The fence line between A and B makes a large loop to the north on to the applicant’s farm with no corresponding incursion, but instead a very small loop, into the respondent’s property. It would appear to be all ‘give’ to the respondent and all ‘take’ from the applicant. This can never be objectively fair, and the board did not pronounce that it was fair. It merely recognized as a part of the factual scenario that the give and take fence between A and B was not 50-50.

[14] Furthermore and with regard to (a) and (b), the board made no finding that it was impracticable or inexpedient to build the fence which the applicant wanted to build between A and B. The applicant said that this could be done relatively easily, he was ready to do it, and he had in fact started. His version was supported by the surveyor Hansen, whose report was referred to extensively in the written submissions made to the board by respondent, and whose evidence was and is unchallenged. Hansen is also a farmer. He said that he has observed a great many fences along boundaries which traversed topography which is considerably more extreme and forbidding than that to be found along the straight line between A and B. The respondent’s attorneys prevented the applicant from demonstrating that he could build his proposed fence by calling into play the provisions of the Act, and calling upon him to refrain from further work pending the hearing by the board. Although the respondent denied that a straight line fence can be built between A and B, he did not put up any facts in support of his denial. There is before me also a dispute about the existence of the geographical features referred to in section 16 along the dividing line. Again, there was no specific finding by the board that such features existed and that they constituted a proper impediment to the construction of a fence along the surveyed dividing line. The only finding was that the existing fence between A and B was built to follow the top of the krantz line.

[15] My conclusion is that the necessary jurisdictional facts were not present to justify a proper finding by the board that the existing fence between points A and B, and between points B and C, was indeed a give and take boundary within the meaning of the Act. That finding by the board, and the findings which follow upon it, must therefore be reviewed and set aside. The effect of my conclusion is that the existing fence has not been shown to be an impediment to the applicant constructing a fence along the dividing line between his farm and the respondent’s farm.

[16] One of Mr Rorke’s alternative submissions was that in the event of my finding in the applicant’s favour on the review application, the matter be remitted to the board. I can see no merit in re-submitting the issue of whether the present fence between A and B was the existing boundary, because there never could have been an agreement or a determination about the matter as required by section 16. If there are further disputes about this boundary fence, the parties can attempt to resolve them, and, if they cannot, they may re-submit them to this board, or, if they prefer, submit them to another board for resolution. It may be, for example, that in the case of the fence between B and C, which appears to be in the nature of a give and take line although it was not the product of a section 16 agreement or determination, the parties may agree in the future that it become the give and take boundary in terms of section 16. But, presently, there is nothing to remit.

[17] I make an order in the following terms:

There will be an order in terms of section 9(1) of the Promotion of Administrative Justice Act No 3 of 2000 extending the period of 180 days laid down by section 7(1) of the Act to the date upon which this application was served.

There will be an order reviewing and setting aside the decision of the fencing board dated 11 September 2003 to the effect that

the fence erected between points A and B, and between points B and C, is a give and take boundary line within the meaning of section 16 of the Fencing Act No 31 of 1963 between the applicant’s farm Groenberg’s Vlei, Portion 1 of Farm No 25, Division of Bedford, Province of the Eastern Cape, and the respondent’s farm Millness, Portion 1 of Farm No 30, Division of Bedford, Province of the Eastern Cape, as shown on the diagram annexure A to the applicant’s founding affidavit; and

the status quo ante should remain (i.e. that the current fence remain the boundary) unless the applicant should refer the issue to the higher authority of the courts.

There will be an order declaring that the fence erected between points A and B, and between points B and C, is not a give and take boundary line within the meaning of section 16 of the Fencing Act No 31 of 1963 between the applicant’s farm Groenberg’s Vlei, Portion 1 of Farm No 25, Division of Bedford, Province of the Eastern Cape, and the respondent’s farm Millness, Portion 1 of Farm No 30, Division of Bedford, Province of the Eastern Cape, as shown on the diagram annexure A to the applicant’s founding affidavit.

The 1st respondent is directed to pay the applicant’s taxed party and party costs of these proceedings.

RJW JONES

Judge of the High Court

2 June 2007.

1 I was referred to Halgreen v Theron 1927 EDL 417 and, also to Marx v Lamprecht 1958 (3) SA 277 (A) which leaves the matter open but which overrules Hansen v Venter 1957 (4) SA 422 in which De Villiers J expressed disapproval of the comments of Gane J in the Halgreen case. In view of my conclusion on the facts, I do not have to go into the matter for the purposes of this judgment.

2 Act No 17 of 1912.

3 Marx v Lamprecht supra

4

2003 (6) SA 38 (SCA) paras 47 and 48.