De Friedland Eiendomme (Pty) Ltd v Pretorius and Another (20744/2008) [2010] ZAGPPHC 95 (5 August 2010)

De Friedland Eiendomme (Pty) Ltd v Pretorius and Another (20744/2008) [2010] ZAGPPHC 95 (5 August 2010)

The court found that the respondents failed to prove that they or their predecessors possessed portion 'C' with the requisite possessio civilis, i.e., the intention to possess as owner. The respondents' evidence was vague and did not establish a clear intention to hold the property as owners, but rather indicated use for convenience, such as access to a garage or for parking. The applicant never lost possession of portion 'C', and the respondents' claim of acquisitive prescription was not substantiated. Therefore, the applicant remains the owner of portion 'A', including portion 'C', and is entitled to free and unrestricted access to its property.

Citation
[2010] ZAGPPHC 95
Parties
Applicant: De Friedland Eiendomme (Pty) Ltd; Respondent: Stephanus Johannes Marthinus Pretorius; Respondent: Janette Anna Pretorius
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
5 August 2010
Case Number
20744/2008
Procedural Posture
Civil Application / First Instance
Outcome
Application granted in favour of the applicant. Respondents ordered to remove all permanent and semi-permanent structures encroaching on applicant's property.
Judges
BAM
Legal Topics
Acquisitive Prescription, Possessio Civilis, Encroachment, Removal of Structures
Land and Property Civil Procedure Acquisitive Prescription Possessio Civilis Encroachment Removal of Structures

Case Brief

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Parties

De Friedland Eiendomme (Pty) Ltd

Applicant

Stephanus Johannes Marthinus Pretorius

Respondent

Janette Anna Pretorius

Respondent

Procedural Posture

Civil Application / First Instance

Legal Issues

  1. 1 Whether the respondents acquired ownership of portion 'C' by acquisitive prescription under section 1(c) of the Prescription Act, 1969.
  2. 2 Whether the respondents and their predecessors possessed portion 'C' with the required possessio civilis.
  3. 3 Whether the applicant retains ownership and right of access to portion 'C'.

Ratio Decidendi

The court found that the respondents failed to prove that they or their predecessors possessed portion 'C' with the requisite possessio civilis, i.e., the intention to possess as owner. The respondents' evidence was vague and did not establish a clear intention to hold the property as owners, but rather indicated use for convenience, such as access to a garage or for parking. The applicant never lost possession of portion 'C', and the respondents' claim of acquisitive prescription was not substantiated. Therefore, the applicant remains the owner of portion 'A', including portion 'C', and is entitled to free and unrestricted access to its property.

Court Disposition

Application granted in favour of the applicant. Respondents ordered to remove all permanent and semi-permanent structures encroaching on applicant's property.

Orders

  • Respondents are ordered to remove all permanent and/or semi-permanent structures erected on or encroaching on the applicant's property within thirty days from the date of this order.
  • Applicant is authorised, in the event of non-compliance by respondents, to engage a civil contractor to remove such structures.