Octrop (Pty) Ltd v National Department of Public Works and Others (38986/2019) [2020] ZAGPPHC 296 (4 June 2020)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED:YES/NO

CASE NOS.: 38986/2019

In the matters between:-

OCTROP (PTY) LTD

APPLICANT

and

NATIONAL DEPARTMENT OF PUBLIC WORKES 1STRESPONDENT

CITY OF TSHWANE METROPOLITAN MUNICIPALITY 2NDRESPONDENT

REGISTRAR OF DEEDS, PRETORIA

3RDRESPONDENT

JUDGMENT

LI VORSTER A J

1. The applicant applies for an order compelling the first Respondent to sign all necessary documents to register a public right of way over the remaining extent of portion. 65 of the Farm Elandspoort 357 JR, which property is owned by the State.

The 1stRespondent opposes the application and the 2ndand 3rdRespondents abide by the decision of the Court.

2. The factual background on which the claim is based is not in dispute, and can be concisely summarized as follows:

2.1 The Farm Elandspoort 357 JR abuts on Stanza Bopape Street, City of Tshwane.

2.2 During 1929 the Remaining Extent of that farm was subdivided into 5 portions, being parts A, B, C and D and Remaining Extent.

On the remaining Extent a building, called the Graigielia building existed. A road was built to give acess from Church street (at the time) to the aforesaid building. That road abutson portions A, B, C and D.

2.3 The subdivided portions were developed into a town during 1930. The town was called Tiny Town.. The access road was called Tiny Town Lane.

2.4 The State, represented by 1st Respondent is the owner of the Remaining Extent of Elandspoort on which the access road and the Graigielia building is situate. That building is used by the State as the National Film archive and it is served by the public access road previously called Tiny Town Lane.

2.4 The applicants as the owner of the historic portions A-D, has consolidated them and have since been renamed and consolidated to portions 406 and 321.

2.5 The applicant successfully applied to the second respondent as the relevant local authority for the establishment of a township comprising the aforesaid properties. Those are erf 1574 and erf 1575. Erf 1574 is consolidated ptn 406 and erf 1575 is ptn 321.

2.6 The 2nd Respondent imposed a condition to the approval of the township namely that the applicant must register a public right of way from Stanza Bopape Street to serve the aforesaid erven. That coincides with the historic Tiny Town Lane which is still used as a public transport and road facility connecting the archives to Stanza Bopape road.

The applicant approached the first respondent for the registration of the public right of way. The 1stRespondent refused

3. The applicant submits that the road in question (Tiny Town Lane) has been used by the general public since time immemorial and therefore it has the character of a public road, relying on the doctrine of vetustas.. In the alternative it relies on acquisitive prescription of a public right of access by the general public on the basis of uninterrupted use of the road for at least 30 years nee vi, nee clam nee precario....

4The first respondent argues that the application is ill-founded as the refusal by first respondent amounts to administrative action which should have been addressed in terms of the procedure prescribed by PAJA. Furthermore it alleges that the application is for a mandatory interdict, which should not succeed as the applicant proves no clear right which forms the basis of an interdict. I shall deal with the aforesaid contention below.

3 Doctrine of vetustas and acquisitive prescription

1. The doctrine of velustas. is founded on the immemorial state of affairs, in casu the use of Tiny Town Lane as public right of way. It raises a presumption that the state of affairs of which the origin is immemorial was lawful. Vide: Grootkraal community et al. v Botha No and other 2019 (2) SA 128 (SCA) par 9.

In this matter vetustas finds no application, as the origin or inception of the use of Tiny Town Lane is known. It was during 1930, when the subdivision of the property took place and Tiny Town development took place. The very basis for the prescription of lawfulness therefor falls away.

2. Acquisitive prescription

It is not in dispute that Tiny Town Lane has been used by the general public for an uninterrupted time of 30 years at least. It was so used nee clam, nee vi nee precario. In my view acquisitive prescription has not been proved. The concept of acquisitive prescription inevitably entails that the use must be in violation of the rights of the owner of the property.

Vide Bschoff v Srtatford 1974 (3) SA 1 (A) at p3.

It is the failure by the owner of the land to prohibit or terminate the violation of this property rights for a period of 30 years which underlies the acquisitive prescription of his property by those who violated his rights nee vi, the clam nee precario for 30 years uninterruptedly.

3. In this case there is no evidence of adverse user of the street, which falls within the property of the first respondent, on the contrary, the street is used and made available to the general public as a means of access to the Film Archives building. It seems clear that, before the property was acquired by the first respondent, Tiny Town lane was a public street which served the development at that stage. Consequently acquisitive prescription has not been proved.

4 The defense raised by the first respondent can also not succeed. The order that the Applicant seeks is not a mandatory interdict aimed at protecting its rights. In fact it is not an interdict at all. It is an application in terms of which the Applicant seeks an order compelling the First Respondent to formalize the public nature of the use of Tiny Town Lane by the general public, by having a public servitude of right of way in favour of the general public registered over its property. The First Respondent does not dispute that the road is used by the general public to gain access and egress from Stanza Bopape road to the building housing the National Film archives. Therefore, on its own version the first respondent has no defense to the prayers in the notice of motion. The fact is that Tiny Town Lane serves as public access from Stanza Bopape street to and from the National Film archives building on first respondent property and the township the Applicant is establishing, on its property.

5 In the result I find that the applicant is entitled to succeed. The Second and Third Respondent did not participate in the hearing and abide by the decision of the court.

ORDER

6 I make an order in terms of prayers 1, 2, 3 and 4 of the notice of motion. Thefirst respondent is ordered to pay the applicant's costs of the application.

LI VORSTER

ACTING JUDGE OF THE HIGH

COURT, PRETORIA

APPEARENCES

For the Applicant: JA Venter

Instructed by: Weavind & Weavind Inc.

For the Respondent: K Ramaimela

Instructed by: State Attorney

Date of hearing: 01 June 2020

Date of judgment: 04 June 2020