In Smith by 8hF5v9O5





Case No. 12743/09

In the matter between:

MORGENSTER 1711 (PTY) LTD                              Applicant


MICHAEL HENDRIK DE KOCK NO                             First Respondent

JOHANNES PETRUS DU PLESSIS NO                          Second Respondent

JOHAN ALBERT LAUBSCHER NO                               Third Respondent

FALSE BAY VINEYARDS (PTY) LTD                          Fourth Respondent

NIKKI MALAN NO                                         Fifth Respondent

ORPA KARIN DE KOCK NO                                  Sixth Respondent

LDP TRUST COMPANY (PTY) LTD NO                         Seventh Respondent


Heard: 24 November 2011

Delivered:    5 December 2011

COUNSEL FOR APPLICANT:          Adv R Brusser SC

INSTRUCTED BY: Edward Nathan Sonnenbergs Inc (Mr SB Levetan)

COUNSEL FOR RESPONDENT: Adv JA Van Der Westhuizen SC Nicole Van

INSTRUCTED BY: Johan Du Plessis Attorney


                                        Case           No.

  In the matter between:



MICHAEL HENDRIK DE KOCK NO                     First

JOHANNES PETRUS DU PLESSIS NO                  Second

JOHAN ALBERT LAUBSCHER NO                       Third

FALSE BAY VINEYARDS (PTY) LTD                  Fourth

NIKKI MALAN NO                                 Fifth

ORPA KARIN DE KOCK NO                          Sixth

LDP TRUST COMPANY (PTY) LTD NO                 Seventh
Court:       ROGERS AJ

Heard:       24 November 2011

Delivered:   5 December 2011



1. The applicant is the owner of the farm Morgenster (Remainder Farm 1319) in Somerset
West. The first, second, fifth, sixth and seventh respondents are trustees of two trusts that own
respectively Portion 2 and Portion 3 of the farm Waterkloof (Farm 820). The fourth
respondent is the owner of Remainder of Waterkloof. The third respondent was a trustee at
the time the application was issued but has subsequently resigned. The fifth to seventh
respondents, who are newly appointed trustees, were by agreement joined as respondents at
the hearing of this matter. The two trusts and the fourth respondent make common cause. It is
not necessary for purposes of this judgment to distinguish between them.

2. Portion 2, Portion 3 and the Remainder of Waterkloof share a common boundary with
Morgenster, the latter farm lying to the north and the former to the south. For many years
there has existed a wire fence the terminal points of which to the east and the west are located
on the common boundary. In between these points, however, the fence does not follow the
cadastral boundary of the farms but runs somewhat to the north thereof (ie on the Morgenster
side of the cadastral boundary). The furthest point of deviation is at a trigonometrical beacon
on a rocky outcrop known as Schaapenberg. At that point the fence lies 41,28 metres to the
north of the cadastral boundary. The full extent of the area between the cadastral boundary
and the wire fence is 1,9052 ha. I shall refer to this area as the disputed area.

3. The applicant and the respondents assert competing claims to the ownership of the disputed
area. With a view to determining this dispute the applicant in June 2009 launched the present
application in which it seeks a declaration that it is the owner of the disputed area. Pursuant to
such declaration the applicant also seeks orders [a] that the respondents remove the fence
which they have allegedly constructed along the line of the old fence and [b] that the
respondents vacate the disputed area and refrain from interfering with the applicant's
possession thereof. The applicant bases its claim on the fact that it is the registered owner of
the full extent of Morgenster, including the disputed area. In their answering papers the
respondents assert that they are the owners of the disputed area by virtue of acquisitive

Factual background

4. Morgenster belonged for many years to the Bairnsfather-Cloete family. Morgenster was
acquired by the current owner (the applicant) in 1992. Historically there were sheep on the
farm but when the applicant acquired the farm sheep farming was abandoned and the
applicant set about preparing the land for the cultivation of vines and olive trees.

5. Shirley Bairnsfather-Cloete, an artist who had lived on the farm since 1953 and was its
owner during 1979-1982, continued to reside on the farm after its acquisition by the applicant
and still did so at the time the present application was issued. Her personal assistant of long
standing was a Ms Janette Yeats.

6. The part of Waterkloof contiguous to Morgenster was acquired by Cullis Relly in 1951. At
that stage the contiguous part of Waterkloof was simply the Remainder. Portions 2, 3 and 4
had not yet been created by subdivision. Portions 2 and 3 and and a reduced Remainder were
created in 1964 and transferred to Cullis Relly's son, Gavin. Cullis Relly continued to occupy
these parts of Waterkloof as well as Portion 4 (also created at this time and ownership of
which Cullis Relly retained). Cullis Relly died in 1992. It appears that at some stage Cullis
Relly had also acquired ownership of Portion 1, and that Portion 1 together with Portion 4
(which Cullis Relly had retained in 1964) were placed in a company called Gryphon Farms
(Pty) Ltd ('Gryphon'). Cullis Relly's son, Gavin, passed away in January 1999. At that time he
was the owner of Portions 2 and 3 and the Remainder of Waterkloof and the principal
shareholder of Gryphon (which was the owner of Portions 1 and 4 of Waterkloof). The
properties and shares passed to Gavin's widow, Jane Relly (who happens to have been a
cousin and good friend of Shirley Bairnsfather-Cloete).

7. During 2003 the respondents opened negotiations to acquire Waterkloof, dealing with Jane
Relly and her son Giles Relly, who managed Waterkloof. These negotiations culminated in
purchase agreements concluded during July 2003. The respondents took transfer of the
Waterkloof properties in February 2004. (Some intermediate entities associated with the
respondents were also involved in these transactions but it is unnecessary to go into the

8. As will be apparent from the above, the Cloete and Relly families were neighbours for
many years (until 1992). There is undisputed evidence that the relationship between the
families was at all times cordial, and that this good relationship continued between the Rellys
and the applicant's Mr Giulio Bertrand.

The dispute arises

9. During September 2003 the controllers of the respondents caused Waterkloof to be
surveyed. The survey revealed that the fence previously mentioned ran to the north of the
cadastral boundary. The respondents consulted their attorney Mr Lamprecht. The latter
carried out an inspection in loco during October 2003 during which he took some
photographs. Lamprecht also interviewed Giles Relly who was present during the inspection.

10. As noted, the respondents only took transfer in February 2004. It so happened that around
this time the fire protection association for the area had decided that a fire break needed to be
cleared between Morgenster and Waterkloof. The applicant caused its employees to begin
with this work early in March 2004 and for this purpose caused metal marker posts to be
placed along the cadastral boundary. (The applicant's Mr Bertrand does not explain in his
founding affidavit how the cadastral boundary was identified and whether he had known prior
to this time where the cadastral boundary was.) The respondents' attorneys immediately wrote
to the applicant, stating that the respondents were the owners of the land south of the fence
and demanding cessation of the work. The resultant impasse led to the institution by the
respondents of an urgent spoliation application. The application was argued before N Erasmus
J in August 2004. In November 2005 Erasmus J delivered judgment in favour of the
respondents. He found that the respondents had been in possession of the disputed land.
Although the competing claims of ownership had been ventilated in the papers, he did not
find it necessary to go into the question of ownership.

11.    Despite the unresolved counter-assertions as to ownership, neither side did
anything more about the matter for several years. The dispute was reignited in November
2008 when employees of the respondents entered the disputed area with a view to repairing or
replacing the old fence. This led to the institution of the present application during June 2009.

Legal requirements for acquisitive prescription

12. Section 1 of the Prescription Act 68 of 1969 reads as follows:

       ' Subject to the provisions of this Chapter and of Chapter IV, a person shall by
       prescription become the owner of a thing which he has possessed openly and as if he
       were the owner thereof for an uninterrupted period of thirty years or for a period
       which, together with any periods for which such thing was so possessed by his
       predecessors in title, constitutes an uninterrupted period of 30 years.'

13.    In terms of s 4(1) of the Act the running of acquisitive prescription is interrupted
by the service on the possessor of any process whereby any person claims ownership of the
property in question. The applicant instituted the present application on 29 June 2009 and
service on the various respondents was effected on 1 and 2 July 2011. It follows that if
possession of the kind described in s 1 was exercised by the respondents and their
predecessors for a period of at least 30 years prior to July 2009 the respondents would be the
owners of the disputed land by acquisitive prescription. This would require that such
possession should have begun to be exercised by the beginning of July 1979 at the latest.

14. The critical requirement in the present case is encapsulated in the phrase 'possessed
openly and as if he were the owner thereof in s 1. The possession contemplated in s 1 is
so-called civil possession. Such possession has an objective and a subjective element, namely
physical possession coupled with animus domini (see Morkels Transport (Pty) Ltd v Melrose
Foods (Pty) Ltd & Another 1972 (2) SA 464 (W) at 474B-C and cases there cited; Glaston
House (Pty) Ltd v Cape Town Municipality 1973 (4) SA 276 (C) at 281D-F; Pienaar v Rabie
1983 (3) SA 126 (A) at 134A-D). The mental state of possessing as if one is the owner covers
both the bona fide possessor and the mala fide possessor. This means that possession in the
bona fide but mistaken belief that one is the owner suffices {Morkels Transport supra at
474E). The fact that the person would not have had that state of mind if he had known the true
facts (ie would not have wished to behave as if he were the owner adversely to the true
owner) is irrelevant.

15. Section 1 does not use the expression often found in the cases, namely that of 'adverse
possession' or of possession 'adverse to the owner'. 'Adverse' possession excludes possession
by virtue of some contract or legal relationship that recognises the ownership of the other (see
Malan v Nabygeleegen Estates 1946 AD 562 at 574). This is captured in s 1 by the words 'as
if he were the owner thereof.

16. In Welgemoed v Coetzer & Others 1946 TPD 701 Murray J said that in order to constitute
adverse possession for purposes of acquisitive prescription there must be acts of use that are
patent to the true owner. At 721 he cited with approval the statement by Dove-Wilson JP in
Gifford NO v Owen & Others 1916 NLR 197 (at 209) that 'ftjhere must be proof of such
visible occupation, of some act or acts of appropriation so patent to constitute reasonable
notice to the owner and others of the setting up of an adverse claim to the land'. This is
consistent with the requirement in s 1 that the property should have been possessed 'openly'.
In Smith & Others v Martin's Executor Dative (1899) 16 SC 148 DeVilliers CJ said of the
common law requirement 'nec clam' that the possession should be 'so patent that the owner,
with reasonable care, could have observed it', that there should be 'sufficient visible proof of
their possession' (at 151).

17.         The acts of use constituting the open possession need not have been exercised in
relation to every part of the disputed area or with absolute continuity. In Morkels Transport
Colman J said, as to the former, that the test was whether 'there was such use of a part or
parts of the ground as amounts, for practical purposes, to possession of the whole'; and as to
the latter, that it was sufficient that use was made of the property in question from time to time
as occasion requires'. He observed that much depended upon the nature of the property and
the type of use to which it is put (at 467H-468B). This is of particular relevance where one is
dealing with extensive farmland. For example the regular use of agricultural land for the
winter grazing of substantial herds of sheep was held sufficient in Van Wyk & Another v Louw
& Another 1958 (2) SA 164 (C) (at 170A-171C; see also Ex Parte Van der Horst: In re Her
old 1978 (1) SA 299 (T) at301A-H).

18.         The onus rests on the person asserting ownership by acquisitive prescription to
prove the requirements laid down in s 1 (see Bisschop v Stafford 1974 (3) SA 1 (A) at 9D-H;
see also Du Toil & Others v Furstenberg & Others 1957 (1) SA 501 (O) at 503E-F).

The evidence in this case

19.         I turn now to the evidence adduced in this case. The respondents bear the
burden of proving possession of the requisite character and duration. However,and because
the applicant chose to institute the proceedings on motion, any disputes of fact relevant to that
question must be resolved in favour of the respondents unless the assertion in question is so
untenable or far-fetched that it can be dismissed on the papers.1 I note in this regard that

    ' See Ngqumba & 'n Ander v Staatspresident & Andere 1988 (4) SA 224 (A) at 259C-263D; National Director of Public
neither side sought a referral of the matter to oral evidence despite my having drawn to
counsel's attention the obvious dangers for each side in having the question decided on paper
without the benefits of trial proceedings (including the right to subpoena witnesses who might
have been unwilling to provide affidavits, the cross-examination of witnesses, discovery and
the like).

20. In its founding papers the applicant stated that so as not to over-burden the record it
intended to place the papers in the spoliation application before the judge hearing the present
case. This was indeed done. Shortly before the hearing the respondents filed an application in
which they sought formally to incorporate the spoliation record into the record of the present
case. They explained that they had mistakenly thought that this was the effect of what the
applicant had said in its founding papers but that they had then observed from the index that
the spoliation record was not actually part of the record in the present case. I did not
understand Mr Brusser SC, who appeared for the applicant, to oppose such incorporation, and
reference to the spoliation record was made during the argument. I do not think it is desirable
that records in other cases should be indiscriminately incorporated into later proceedings.
However in the present case the applicant itself evidently considered that it would be
appropriate for the court to have regard to the spoliation record. Bearing in mind that the
present respondents were the applicants in the spoliation case, no injustice would be done if I
were to have regard to the allegations in the founding papers in the spoliation case (to which
the present applicant fully responded in that case) and to any allegations in the answering
papers in the spoliation application that were not disputed by the present respondents in reply.

In the event, there is relatively little in the spoliation record that does not find its counterpart
in the papers in the present matter.2

Prosecutions v Zuma 2009 (2) SA 277 (SCA) paras 26-27.
  The only material in the spoliation record to which I have found it necessary to pay regard are: [a] the
confirmatory affidavit of attorney Stephen Lamprect at pp 117-118 [b] the colour versions of the photographs at pp
88-96 (poor quality black-and-white versions were attached to the answering affidavit in the present application) [c]
the photographs at pp 104-114 (which appear by oversight to have been omitted from the answering affidavit in the
present application) [d] paragraphs 30 and 47 of the founding affidavit in the spoliation application, which provide
commentary on the said photographs, together with the parts of the answering affidavit that respond to the said
21. Since the respondents bear the onus and since it is their version of the facts which will
generally prevail, it is logical to focus on the facts asserted by them though I shall where
appropriate make reference to relevant undisputed allegations made by the applicant.

22. The first consideration is the existence of the fence itself. Both sides accept that the fence
has been in existence for a long time. By 2003 it was very dilapidated. The photographs show
that in some places it was barely visible or had virtually fallen to the ground. It is thus
apparent that for many years nobody has bothered to maintain it. According to the affidavit of
Gordon Allderman, who was the farm manager on Waterkloof during 1968 and 1969, the
fence already existed at that time. Bertrand for the applicant says that the style of the old
fence was precisely the same as other internal paddock fencing that he caused to be removed
when the applicant acquired the farm in 1992 and sheep farming was abandoned. It was
unnecessary, he says, to remove this particular fence because it was not in an area suitable for
the cultivation of vines or olives.3

23. There is no direct evidence as to who erected the fence or why they erected it in the
position they did. As to why it was placed where it was, Mr Van der Westhuizen SC, who
appeared for the respondents together with Ms N Van Huyssteen, suggested that it was not
unlikely that the fence took the line it did because of a mistaken assumption that the beacon
on Schaapenberg was located on the cadastral boundary between Waterkloof and Morgenster.
The applicant, relying on the affidavit of Janette Yeats, who has been employed on
Morgenster since 1982, contends that the fence was erected to stop sheep from wandering
between the two farms and that the fence followed the line it did because of the topography of
the area and 'presumably because this area was the most convenient point for the farm
workers to construct the fence on and for them to maintain it'. Both versions are speculative.

  Bertrand's allegations, contained in paragraph 64.2 of the founding affidavit, were the subject of a bare denial by
the respondents' main deponent Mr Laubscher. I do not consider that the bare denial of a fact not within Laubscher's
personal knowledge raises a genuine dispute of fact: Wightman t/a JW Construction v Headfour (Pty) Ltd2008 (3) SA
371 (SCA) at 375F-376B.
There is no witness who claims to have actual knowledge as to why the fence was erected
where it was. Having regard to the photographs that form part of the record I do not believe
that the topography dictated any particular location for the fence. Conversely, I cannot find it
more probable than not that whoever erected the fence thought that the beacon on
Schaapenberg lay on the cadastral boundary.

24. As to who erected the fence, the fact that it was of the same type as the other internal
paddock fencing on Morgenster points to the likelihood that the fence was put up by the
Cloetes and that its function was to confine sheep. At any rate there is no evidence that it was
erected by the Rellys. This means that I cannot treat the erection of the fence as an act of
appropriation or visible assertion of ownership by the Rellys.

25. Then there is the fact that there is a gravel road on Morgenster running parallel with and
just to the north of the fence. There is no evidence as to when this road was constructed. Since
we are concerned primarily with the use by the respondents and their predecessors of the
disputed land south of the fence, I do not think there is much significance in the fact that this
dirt road existed to the north of the fence (presumably it was used from time to time by the
occupants and employees on Morgenster).

26. There is no similar gravel road running parallel to the wire fence immediately to the south
thereof. There does however exist a gravel road that appears from thephotographs4 to
approach reasonably close to the fence at one point by making a loop into the disputed area. It
appears from the papers in the spoliation application that this road was already in existence
when the respondents acquired Waterkloof in 2003. However, there is no evidence as to when
the road was constructed. It would be a matter of speculation to say that the road has been in
existence since July 1979. I should also observe that the road only intrudes into the disputed
area at one point and traverses only a very small part of the disputed area. To judge from the

    The clearest view of this loop is in the photograph at p 106 of the spoliation record.
photographs the most northerly part of the loop is still some metres south of the fence.

27. Remaining with purely physical evidence, Mr Van der Westhuizen SC pointed out to me
that it appears from the photographs attached to the founding affidavit (colour copies of which
are to be found in the record of the spoliation application) that there are stands of mature trees
(which appear to be pines) immediately to the north of the gravel road on Morgenster whereas
no similar trees are to be seen to the south of the fence. This, he argued, shows that clearing
work must have been undertaken by the owners of Waterkloof in the disputed area. The
difficulty I have with this submission is that this particular feature of the photographs and the
conclusion that Mr Van der Westhuizen seeks to draw from it were not articulated by the
respondents in their affidavits either in this case or in the spoliation application. The applicant
has thus not had the opportunity of commenting thereon. It may well be a reasonable
inference that such clearing work occurred and that it was done by the owners of Waterkloof
rather than by the owners of Morgenster. Even so, there is no evidence as to when the work
was carried out. It could for all one knows be relatively recent. The photographs certainly do
not justify the inference that employees of Waterkloof must have done clearing work in the
disputed area during the 1980s or 1990s.

28. There are photogaphs showing that as at March 2004 there existed no-tresspassing signs
next to the gravel road on Morgenster and facing towards Waterkloof.5 This, submitted Mr
Van der Weshuizen, was evidence that the owners of Morgenster regarded the wire fence as
marking the cadastral boundary between the farms. At a factual level, my difficulty with this
submission is that the commentary on these photographs6 leaves me uncertain as to where
exactly these signs are located. It appears from the commentary that at least one of them is
located at the gate post where Waterkloof, Morgenster and Vergelgen meet. 7 At this point,
however, the wire fence and cadastral boundaries do coincide. If the no-trespassing signs

  See paragraph 47.6 of the founding affidavit in the spoliation application read with the photographs at pp 111-114.
  Paragrpah 47.6 of the founding affidavit in the spoliation application.
  This is the point marked 'C on the diagram at pp 28-30 of the record, being the eastern terminal point of the fence.
were erected at what I previously referred to as the two terminal points of the wire fence, they
are located on the true boundary. It is only between those two points that the fence deviates
from the cadastral boundary, and what is not clear is whether there are any no-trespassing
signs near the fence at a point of significant deviation.

29. However, and even if there were no-trespassing signs near the fence at points where it
deviated significantly from the cadastral boundary, the inference that the owner of Morgenster
thought the fence marked the true boundary is only one of several reasonable inferences.
Another is that this was simply the convenient place to erect the sign posts, given the de facto
existence of the gravel road and the fence. Moreover there is no evidence as to when these
sign posts were put up. This may have occurred sometime after the applicant acquired
Morgenster in 1992. Their presence affords no reliable evidence concerning the belief of the
Cloete family as to the location of the boundary. In any event, what one is looking for is
evidence of the use made by the Waterkloof owners of the land immediately to the south of
the fence, not the (possibly mistaken) beliefs of the Morgenster owners.

30. In addition to such evidence as is afforded by the physical features discussed above, the
respondents have adduced the evidence of three persons who were managers of Waterkloof at
various times over the period 1968 to 1980. The respondents have also furnished hearsay
evidence of statements made by the late Giles Relly to Lamprecht.

31. The affidavits of the three farm managers are in identical form. In summary they each say
the following: [a] that they are familiar with the old fence shown on the photographs attached
to the papers [b] that they always regarded the fence as the boundary between Waterkloof and
Morgenster [c] that to the best of their knowledge and belief this was the view adopted also
by their employers and by anyone else who had occasion to visit the area [d] that whenever
their functions as manager took them to the disputed area and it was necessary for them to
move over the disputed area, they did so in the belief that they were on Waterkloof and that
they were lawfully there by reason of their employer's rights in respect of the land.

32. Before commenting further on this evidence it is appropriate to refer also to the hearsay
statements attributed to the late Giles Relly. These statements were made to Lamprecht during
October 2003 when Lamprecht conducted his inspection in loco. Lamprecht filed a
confirmatory affidavit in the spoliation proceedings to confirm what Giles Relly told him.8 It
appears that Giles Relly was reluctant in the spoliation proceedings to make an affidavit
himself. Since he passed away during October 2004 no affidavit could be obtained from him
in the present proceedings. In terms of s 3(1) of the Law of Evidence Amendment Act 45 of
1988 it would in my opinion be in the interests of justice to have regard to the statements he
made to Lamprecht though naturally the weight to be attached to such statements must take
account of the fact that because he is deceased the statements cannot be tested. According to
the statements made by Giles Relly to Lamprecht, he had occasion to visit Waterkloof on a
number of occasions during the 1970s and that from 1996 he managed Waterkloof first on
behalf of his father and then on behalf of his mother. Giles Relly further stated to Lamprecht
that from beginning to end he regarded and treated the wire fence as the common boundary
between Waterkloof and Morgenster.

33. In my view the hearsay statements of Giles Relly do not take the respondents' case much
further. Those statements merely establish a mental attitude on his part, namely a belief as to
where the boundary was located. He did not say (I do not know whether he was asked)
anything about the use (if any) made of the disputed area.

  The hearsay statements of Giles Relly are set out in paragraphs 6.1 and 6.2 of the main answering affidavit in the
present case. The content of these paragraphs is the same as paragraph 33 of the founding affidavit in the spoliation
application. The fact that Giles Relly made these statements to Lamprecht was confirmed by the latter in a
confirmatory affidavit filed as part of the founding papers in the spoliation application. For some reason a fresh
confirmatory affidavit by Lamprecht was not filed as part of the answering papers in the present application but in
view of my approach to the spoliation record I do not see this as a fatal defect.
34. The evidence of the three farm managers establishes that they, like Giles Relly,
understood the boundary between the two farms to be marked by the fence. That would
establish that they subjectively viewed the land south of the fence as forming part of
Waterkloof. I am doubtful whether this justifies an inference as a matter of probability that
Cullis or Gavin Relly had the same belief. One or both of Cullis and Gavin Relly may have
been aware of the actual reason why the fence was erected where it was. If the fence had been
erected in the place it was as a matter of convenience and did not correspond with the
cadastral boundary between the farms, and if Cullis and Gavin Relly knew this, they would
obviously not have viewed all the land south of the fence as forming part of Waterkloof nor
(in the light of the excellent relations they maintained with the Cloetes) would they have
intended that any use made by themselves and their servants of the disputed area should be
adverse to the owners of Morgenster (ie as if they, the Rellys, were owners). I do not think it
can be assumed that if this had been the case the farm managers or Giles Relly would have
been told. Given the good relations that prevailed at all times between the Cloetes and the
Rellys and that no agricultural use ever seems to have been made of the land in the vicinity of
the fence (as to which, see below), the fact that a portion of the land immediately south of the
fence actually belonged to Morgenster would not have been of any practical significance for
day-to-day life on the farms.

35. In the absence of evidence that Cullis and Gavin Relly believed that everything south of
the fence formed part of Waterkloof and thus belonged to them, the acts of their servants (the
three farm managers and later Giles Relly) would not be manifestations of possession of the
type required by s 1 of the Prescription Act. The phrase 'as if he were the owner' in s 1 applies
to the relevant possessor. The relevant possessor for present purposes would be the owners
from time to time of Waterkloof. The physical manifestations of possession could naturally be
acts of employees of the owners of Waterkloof but the relevant intention would still have to
be that of the owners themselves and not the employees (cf Welgemoed at 710-716; Morkels
Transport at 475E-G).
36. However, and even if one could properly infer that Cullis and Gavin Relly mistakenly
believed that all the land south of the fence formed part of Waterkloof, the respondents would
still need to satisfy the court that there were acts of open possession of the disputed land. This
would require patent acts of visible use or occupation of sufficient frequency to constitute
continuous open possession for 30 years. Since there is no evidence that the fence was erected
by the owners of Waterkloof rather than the owners of Morgenster, the erection of the fence is
not itself such an act. What other evidence of patent use is there? As far as I can see, the sum
total of such evidence is contained in the statements of the three farm managers to the effect
that whenever their functions as manager took them to the disputed area and it was necessary
for them to move over the disputed area they did so in the belief that they were on
Waterkloof. They do not say what functions as manager ever took them into the disputed area
or to what use the disputed area was put. There is no evidence whatsoever that the disputed
area was cultivated or used for grazing. The photographs that were taken in October 2003
reflect that there was no farming activity in the disputed area at that time. The disputed area
and a relatively large tract of Waterkloof further to the south appear to be covered by fynbos.
The evidence of Shirley Bairnsfather- Cloete is relevant in this regard. She describes the fence
as having been on a remote part of the Schaapenberg portion of Morgenster. She alleges that
no farming activity was ever carried out by either the Rellys or the Cloetes on the part of the
farms in the vicinity of the fence. She describes that area as 'undeveloped bush'. This
evidence, adduced as part of the founding papers, has not been denied.

37. I mentioned earlier that there is a gravel road on Waterkloof which makes a loop into a
small part of the disputed area. Apart from the fact there is no evidence as to when that road
was made, I should add that regular use of the gravel road alone would not suffice to
constitute possession of the disputed area; at best, it might establish use for purposes of
claiming a right of way by acquisitive prescription.

38. In summary, the evidence adduced by the respondents does not in my view establish that
their predecessors performed acts of use in respect of the disputed area sufficient to meet the
requirement of open possession as contemplated in s 1 of the Prescription Act. I am also not
satisfied that there is evidence that such acts of use as did occur were accompanied by a
mental attitude on the part of the Waterkloof owners that the said acts were being performed
as if they were owners of the disputed area. (In both theses respects, this case can be
contrasted with the evidence that successfully established the plaintiffs claim of acquisitive
prescription in Campbell v Pietermaritzburg City Council 1966 (2) SA 674 (N) -there the
evidence was that the plaintiffs father had caused the fence to be erected in the belief that it
was on the common boundary, that continuous use had been made of the disputed area for
grazing and keeping animals and that the grass was frequently burnt or cut. In Welegemoed
the acts of use of the disputed area were substantially more extensive than in the present case
yet Murray J held that they were 'not so precisely open and adverse to the then owner' to
justify upholding the claim: 718-723.) In reaching my conclusion I have accepted the facts
asserted by the respondents and drawn the inferences from those facts that I regard as
probable rather than speculative. I have also had regard to those facts asserted by the
applicant's deponents which are not disputed, namely the good relations that existed between
the Relly and Cloete families and the absence of any active farming on either Morgenster or
Waterkloof in the immediate vicinity of the fence.

39.    In the light of the conclusion I have reached it is not necessary to say very much
about the other evidence contained in the affidavits of Shirley Bairnsfather- Cloete and
Janette Yeats (filed on behalf of the applicant). Other than the aspects to which I have already
made reference, it appears to me that their affidavits make assumptions lacking in clear
factual foundation. It is also not necessary for me to examine the quality of the respondents'
own possession of the disputed land since late 2003 because such possession, even if it was
possession as contemplated in s 1 of the Prescription Act, was obviously not on its own of
sufficient duration to found a claim of acquisitive prescription.
Concluding matters

40.     It follows that the applicant is entitled to the declaratory order it seeks. Regarding the
interdict, Mr Van der Westhuizen SC conceded that if the applicant was declared to be the
owner of the disputed land any fencing erected by the respondents on the disputed land would
have to be removed. The applicant alleged, and the respondents in their answering papers
admitted, that the respondents did during 2008 enter upon the disputed area in order to repair
or replace the old fence. During argument Mr Van der Westhuizen conveyed his instructions
as being that in truth no new fence had been erected. Clearly the respondents cannot be
required to remove the old fence since there is no evidence that their predecessors erected it.
My order in that regard will thus be confined to the new fencing (if any) erected by the

41. I do not think it is necessary to order the respondents to vacate the disputed area and to
restore possession thereof to the applicant. Other than the removal of any new fencing, it is
not apparent to me what the respondents would be required to do if I ordered them to restore
possession of the land to the applicant. As regards the interdict to restrain the respondents
from disturbing or interfering with the applicant's possession of the disputed area, I doubt
whether such an order is necessary. Such use as the respondents have made of the disputed
area has been made in the belief that they have acquired ownership thereof through
prescription. Once a court determines they are wrong I have no reason to believe that they
will interfere with the applicant's ownership of the land.

42. I make the following order against the respondents (other than the third respondent who is
no longer a trustee of the trusts):

      a) It is declared that the applicant is the lawful owner of certain land, approximately
      1,9052 ha in extent, which lies between the cadastral boundary of the farm Morgenster
      and the fence on Morgenster that passes between the beacon marked 'TR016' and which
   land is depicted on plan C3065TAC annexed to the founding affidavit of Giulio
   Bertrand as annexure 'GB2' ('the land').

   b) The respondents are directed to remove any fencing that they have erected or caused
   to be erected on the land.

   c) The respondents are directed to pay the applicant's costs jointly and severally, the one
   paying the other to be absolved.

                                      ROGERS AJ

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