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Wednesday May 14, 2014

How the Prescription Act applies to property matters

The Prescription Act 68 of 1969 states that a claim to a debt must be finalised within a specified time limit. The claim to rental, for example, is extinguished or rendered unenforceable after three years.

A judgment obtained for a debt in South Africa will prescribe or fall away after 30 years; so would a debt for a mortgage bond, taxation and certain debts owed to the State.

Prescription is a way to 'punish' the creditor for taking long to claim her/his debt (Daily News, August 13, 2013).

The act also refers to 'acquisitive prescription', the real right a person acquires over a servitude held or used for an uninterrupted period of 30 years.

Section 6 of the Prescription Act 68 of 1969 (the 'Act') provides that '... a person shall acquire a servitude by prescription if he has openly and as though he were entitled to do so, exercised the rights and powers which a person who has a right to such servitude is entitled to exercise, for an uninterrupted period of 30 years or, in the case of a praedial servitude, for a period which, together with any periods for which such rights and powers were so exercised by his predecessors in title, constitutes an uninterrupted period of 30 years.'

Servitude is a registered right a person has over the immovable property of another.

Some tenants are led to believe that they are entitled to own the leased property after 30 years.

To satisfy a claim for an 'acquisitive prescription' the person must possess or have use over servitude for a continuous period of 30 years, without an express or tacit consent or a contractual obligation.

In other words, if an owner allows a person to occupy her property or consents to the use of a piece of her land for access, there is no right of claim.

In Pezula Private Estate (Pty) Ltd v Metelerkamp (149/2013) (2013) Zasca 188 (29 November 2013), the Supreme Court of Appeal overturned the judgment of the Western Cape High Court that granted Neil Metelerkamp the right of having acquired a servitude of unhindered pedestrian access along a defined route over property owned by Pezula Private Estate (Pty) Ltd (Pezula).

Alan Stephan Accra Henderson, an owner of an adjoining farm, entered into a lease with Geo Parkes & Sons (Pty) Ltd in 1940 to build a road on the property to gain vehicular access to his property.

Metelerkamp, also an owner, rented a garage and was given access to his property through this strip road, which was also used by the public to gain access to the beach.

In 2000 Pezula bought the land from Geo Parkes and closed the strip road during May 2006.

Metelerkamp instituted legal action in 2007 claiming his right to the access road due to prescription. The SCA held that a servitude did not exist because Metelerkamp had permission to use the access road.

In Summers and Another v Kiewitz and Another (14722/10) (2011) ZAWCHC 331 (1 September 2011), the occupants, Johnie Boy Kiewitz and Johanna Kiewitz, refused to move out of the property they occupied in Church Street, Hawston, in the Western Cape.

They claimed that through acquisitive prescription they had become the owners of the property.

The court stated that the elements of acquisitive prescription possession have been described as a combination of the physical control of the corpus (the thing) by a person, together with a controlling mental attitude ( animus) towards the thing.

It is therefore argued that for the purposes of acquisitive prescription, full juristic possession is required, namely, possessio civilis (possession by means of prescription).

However, the court did not decide on acquisitive prescription, since the matter before it was for eviction based on the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998 (PIE). The court had to decide whether the requirements for PIE were met.

The Kiewitzes contended that there was a dispute of facts which could not be decided on papers, since this was an application and not summons for eviction.

The applicants, Charles Bernard and Katrina Summers, according to the court, failed to meet all the requirements of the PIE Act. They failed to show that they had ownership rights.

'The applicants have failed to satisfy the requirement of ownership, in that their registered title has been challenged with a claim of acquisitive prescription.

'They have further failed to satisfy the court that the respondents were in unlawful occupation of the property.'

Accordingly, the application to have the Kiewitzes evicted was denied and the case was dismissed.

Dr Sayed Iqbal Mohamed
Chairman, Organisation of Civic Rights
Tenant Matters
Daily News


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