Muller NO and Others v Theron and Another (11877/2008) [2013] ZAWCHC 44 (1 March 2013)

Muller NO and Others v Theron and Another (11877/2008) [2013] ZAWCHC 44 (1 March 2013)

The court found that the defendants had not possessed the encroachment openly and as if they were the owners for the required uninterrupted period of thirty years. The written agreement between the predecessor in title of the defendants and the predecessor in title of the plaintiffs established that occupation was temporary and did not amount to possession as owner. The evidence did not support the defendants' claim to ownership by prescription. The plaintiffs, as registered owners, were entitled to restoration of possession. The defendants' counterclaim was dismissed with absolution from the instance.

Citation
[2013] ZAWCHC 44
Parties
Plaintiff: Abraham Daniel Muller N.O.; Plaintiff: Hannalie Muller N.O.; Plaintiff: Johan Muller N.O.; Defendant: Adriaan Theron; Defendant: Mevrou Theron
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
1 March 2013
Case Number
11877/2008
Procedural Posture
Civil Trial / Judgment After Trial and Counterclaim
Outcome
Plaintiffs succeed with their claim for restoration of possession; defendants' counterclaim dismissed with absolution from the instance.
Judges
R.M. Nyman
Legal Topics
Acquisitive Prescription, Encroachment, Restoration of Possession, Absolution From Instance
Land and Property Civil Procedure Acquisitive Prescription Encroachment Restoration of Possession Absolution From Instance

Case Brief

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Parties

Abraham Daniel Muller N.O.

Plaintiff

Hannalie Muller N.O.

Plaintiff

Johan Muller N.O.

Plaintiff

Adriaan Theron

Defendant

Mevrou Theron

Defendant

Procedural Posture

Civil Trial / Judgment After Trial and Counterclaim

Legal Issues

  1. 1 Whether the defendants acquired ownership of the encroachment by acquisitive prescription.
  2. 2 Whether the plaintiffs are entitled to restoration of possession of the encroachment.
  3. 3 Whether the defendants' counterclaim for ownership by prescription should succeed.

Ratio Decidendi

The court found that the defendants had not possessed the encroachment openly and as if they were the owners for the required uninterrupted period of thirty years. The written agreement between the predecessor in title of the defendants and the predecessor in title of the plaintiffs established that occupation was temporary and did not amount to possession as owner. The evidence did not support the defendants' claim to ownership by prescription. The plaintiffs, as registered owners, were entitled to restoration of possession. The defendants' counterclaim was dismissed with absolution from the instance.

Court Disposition

Plaintiffs succeed with their claim for restoration of possession; defendants' counterclaim dismissed with absolution from the instance.

Orders

  • Defendants are ordered, at their cost, to take all necessary steps to restore to plaintiffs possession of the encroachment described in the beacon certificate dated 6 March 2006 as encroachment 'B', in extent of 33 square meters, being part of Erf 19657, Paarl, Western Cape, held by plaintiffs under Title Deed No....
  • Restoration must be effected by defendants within thirty (30) days from the date of this order.