Madisha v Motlakwana and Another (30488/06/07) [2009] ZAGPHC 42 (18 February 2009)

Not reportable

IN THE HIGH COURT OF SOUTH AFRICA

TRANSVAAL PROVINCIAL DIVISION

Dates: 16 and 18 February 2009

Case 30488/06/07

In the matter between

BOAS GODFREY MADISHA PLAINTIFF

and

CHERRA MOTLAKWANA FIRST DEFENDANT

STELLA MOJAPELA SECOND DEFENDANT

Neighbours - dispute as to border - surveyor's testimony accepted in the absence of contrary evidence concerning prescription or another valid cause.

JUDGMENT

Van Rooyen AJ

[1] This is an application for a declaratory order as to the border between two properties and an interdict to prohibit future likely

unlawful conduct in not abiding by the declaratory order. The defendants are required to remove an iron pale which is alleged to be on the property of the Plaintiff and which is said to represent the line of the border between the two properties. The pale, it is alleged, is 0,7 meter into the plaintiffs property.

[2] The Plaintiff and Defendants are neighbours in Atteridgeville, a suburb of Pretoria (now Tshwane). The First Defendant is married to the Second Defendant, who is the owner of the property. First Defendant was joined in this matter as a result of the application

for the interdict, which the Court also has to consider.

[3] Broadly, the evidence of Mr Motlakwana amounts to the following: The defendants have lived in Atteridgeville since 1987. At that stage the house, in which they have lived since then, was built. The house was in the open fields. According to Mr Motlakwana the fence was constructed at the time by the builder The Plaintiff testified that he came to live on the adjoining property in 1994. He found the fence there and noticed that it was skew. Plaintiff built a wall between the properties in 2003, directly next to the fence. In 2004 he broke it down again. The Plaintiff appointed an attorney who measured the property and found that the border, indicated by the pale, was encroaching upon his property. After attempts at settling the matter failed, the Plaintiff hired a surveyor to determine the boundary. The testimony of the surveyor was that there is an encroachment of 0,7 meter onto the stand of the Plaintiff, which amounts to a total area of 18 square meters. The cross-examination by Mr Motlakwane did not, in my view, successfully attack the credibility of the witness.

[4] Mr Motlakwana argued the case for the defendants personally. His main argument is that since they had come to live in Atteridgeville the border was represented by the fence, of which the iron pale is the only remaining part. In their plea it is inter alia stated that the boundaries of their stand were determined by the then Local Authority and have never been altered. In effect the defence is that whatever the official records state, those records do not accord with the factual situation. That Courts are not averse to rectifying official records by establishing what the true position is, has been confirmed by the Supreme Court of Appeal in Knysna Hotel CC v Coetzee NO 1998(2) SA 743(SCA). If, in other words, the defendants could have proved that the fence had been in that position for thirty years, nev vi, nec clam, nec precario, they would have established ownership based on prescription. The border would, after the thirty years, have shifted legally and there would have been no encroachment. The necessary official rectification to official records would then be justified. Mr Scheepers for the Plaintiff, however, put this proposition to Mr Motlakwana and he conceded that his case was not based on prescription, since he had not placed evidence of prescription before the Court and also did not plead prescription. Furthermore, if they could have proved their claim that the boundaries were determined by the then Local Authority I would, depending on the powers of the Local Authority, possibly have upheld their defense. However, this plea was not substantiated by any evidence.

[5] I also looked into the question whether defendants could not possibly be protected by the rebuttable presumption created by vetustas (which could be related to their wide-ranging plea that the boundaries were determined by the Local Authority and the well-known fact, of which I take judicial notice, that Atteridgeville was founded in 1939) that the boundary had been there since time immemorial and that no one knew how it came about. However it is settled law that vetustas only acts in favour of public rights and would, accordingly, not apply in a private dispute, such as the present dispute (see Forellendam Bpk v Jacobsbaai Coastal Farms (Pty) Ltd 1993(4) SA 138(C)).

[6] The defendants argued that the Plaintiff, the surveyor and everyone involved from the other side were misleading the Court. He questioned the integrity of the surveyor in so far as he could not, without checking his records, remember whether he did the survey in 2004 or 2005. Of course, it is perfectly legitimate for witnesses to check their records to ensure that they are providing the Court with the correct facts. The result is that the plaintiff has proved his case by leading the evidence of the surveyor that the iron pale was 0,7 meter into the stand of the Plaintiff, measured by the records of the Surveyor-General. The defendants were unable to show the contrary.

[7] Although I have been requested to order the First Defendant to remove the pale, I believe that the Plaintiff may do that himself.

[8] As to costs, Mr Scheepers argued that the costs of the hearing plus costs of postponement must be paid by the Defendants. Mr Motlakwana responded by arguing that he found this claim unbelievable: he had been "invited" to this hearing only to find out that if he lost he had to pay the costs of the Plaintiff. Of course, this argument loses sight of the fact that the summons explicitly grants the Defendants the opportunity not to defend. They have, however, decided to defend the matter and the usual rule is that if a party is successful his or her costs are paid by the other party. However, given the misleading situation created by the presence of the fence since when the defendants commenced living in the house in Atteridgeville, I believe that, except for the costs of this hearing, all other costs should be paid by each party. The costs of the surveyor are to be shared 50:50; it was in the interest of both parties and legal certainty that the surveyor had been approached.

[9] I am not satisfied that the plaintiff has made out a case for an interdict against the Defendants. Although the First Defendant is agitated by the claims of the Plaintiff, I do not believe that he poses a future risk to the property of the Plaintiff. Any

interference with the execution of this order would, in any case, amount to contempt of the court order which I will issue.

ORDER

1. It is declared that the property of the Plaintiff is the size and has the boundaries as indicated in Annexure "A" of the Summons.

2. The Plaintiff is entitled to remove all or any impediments including, but not limited to, an iron pale on Plaintiffs property, which, according to the Defendants, marks the border.

3. The costs pertaining to the hearing on the 16th February 2009 must be paid on the ordinary scale by the Defendants who are responsible for the costs jointly and severally, the one paying, the other to be absolved. However, only 50% of the taxed fees of the surveyor are to be paid by the Defendants, jointly and severally.

4. Otherwise each party is to pay its own costs.

JCW van Rooyen 18 February 2009

Acting Judge of the High Court

For the Plaintiff: G Scheepers instructed by Van Zyl, le Roux and Hurter, Pretoria.

Defendant : in person.