[zRPz] MORKELS TRANSPORT (PTY) LTD v MELROSE FOODS (PTY) LTD AND ANOTHER 1972 (2) SA 464 (W)

* 1972 (2) SA p464 Citation Court Judge Heard 1972 (2) SA 464 (W) Witwatersrand Local Division Colman J August 2, 1971; August 3, 1971; August 4, 1971; August 5, 1971; August 6, 1971; August 9, 1971; August 10, 1971; August 11, 1971; August 12, 1971; August 13, 1971; August 16, 1971; August 17, 1971; August 18, 1971; August 19, 1971; August 20, 1971 August 27, 1971

Judgment

Annotations Link to Case Annotations [zFNz] Flynote : Sleutelwoorde Prescription - Acquisitive prescription - What possessor of land claiming to have acquired it by prescription must prove - When possession is adverse Failure to prove civil possession, B non-precarious tenure or adverse user. [zHNz] Headnote : Kopnota It is not necessary that the possessor claiming to have acquired ownership by prescription need have been bona fide either in assuming or in retaining possession. It is however necessary for him to prove the subjective element in civil possession, i.e., he must prove both the factum and the separate element of animus . No use, occupation or C possession is adverse, for the purposes of the law of acquisitive prescription, unless the owner has a legal right to prevent it. The plaintiff claimed an order declaring that it had, by prescription, acquired the ownership of certain lots in a township in the district of Johannesburg. The action was opposed by a company as the registered owner of the plots and by the Minister on behalf of the Government which was the first defendant's immediate predecessor in title and from which D the first defendant had obtained transfer in pursuance of a contract of exchange concluded in 1969. The Court found that the plaintiff had had possession for 30 years of the disputed ground, nec vi, nec clam , sufficiently continuous to support its claim. It found, further, however, that it had failed to prove, as a fact or a probability, that for the whole of the requisite period it and its predecessors had occupied otherwise than under precarious tenure; i.e. it had failed to prove that during the relevant period, or any part of it, it had not occupied under an express or implied precarious grant from the E Government. It also found that the

plaintiff had failed to prove that it had the necessary animus possidendi throughout the period; and also that its possession had been adverse to the rights of the owner. Held , as the plaintiff had failed to prove civil possession, non-precarious tenure or adverse user, that absolution from the instance should be granted with costs. F [zCIz] Case Information Action for a declaratory order. Facts not material to report have been omitted. B.L.S. Franklin, S.C. (with him R. H. Peart ), for the plaintiff. R.S. Welsch, Q.C. (with him R. J. Goldstone ), for the first defendant. G. A. Coetzee, Q.C. (with him S. A. Cilliers ), for the second defendant. G Cur. adv. vult. Postea (August 27th). [zJDz] Judgment H COLMAN, J.: The plaintiff in this action claims an order declaring that it has, by prescription, acquired the ownership of lots 583, 620 and 621 in the township of New Doornfontein, district of Johannesburg, the value whereof (the parties agree) is R60 000. There are further claims for consequential and alternative relief which need not be mentioned at this stage. The action is opposed by the first defendant, a company which is 1972 (2) SA p465 COLMAN J registered in the Deeds Registry as the owner of the three lots, and by the second defendant, on behalf of the Government, which was the first defendant's immediate predecessor in registered title and from which the first defendant obtained transfer of the lots in pursuance of a contract A of exchange concluded in 1969. During the greater part of the period relevant to this action the Government held the lots under registered leasehold title; the freehold owner during that period was Johannesburg Estate Co. Ltd., whose name has since been changed to Johannesburg Estate Co. (Pty.) Ltd. That company was the registered owner of the freehold during the period from 1894 until 1949, when the Government's B leasehold title was converted to freehold. The Johannesburg Estate Co. Ltd. is not a party to this action, but it is aware of the litigation and has waived any right which it may have to be joined or to intervene in it. The plaintiff is a company which, since its incorporation in 1932 under C the name of E. Morkel (Pty.) Ltd., has carried on a cartage and storage business in Johannesburg. The business was originally owned by Mr. P. G. E. Morkel,

who was commonly known as E. Morkel and who signed himself as such. In 1918 the business was taken over from him by a company called E. Morkel Ltd., but that company went into liquidation in February, D 1922, and was for some months under the control of a liquidator. Mr. E. Morkel acquired the assets and liabilities of the company on some date between February and September, 1922, and resumed the conduct of the business, which he continued until it was acquired by the plaintiff in 1932. At some later stage the plaintiff changed its name to Morkels Transport (Pty.) Ltd. When I use the term 'Morkels' in this judgment, I E shall be referring (according to the context) to that business, as conducted by the plaintiff or by one of its predecessors, or by some or all of its owners successively. Lots 583, 620 and 621, New Doornfontein (sometimes referred to as 'stands'), form part of a block bounded on the north by Miller Street, F on the south by Voorhout Street, on the east by Bertrams Road and on the west by First Street. The greater part of that block is now built up; but its southern portion, a rectangular area consisting of the three lots in dispute together with lot 582, is, and apparently always has been, a vacant, unimproved area. It is an unfenced, unpaved piece of ground, free of vegetation except for one tree near the corner of G Voorhout Street and Bertrams Road, and sloping roughly and irregularly downwards towards the north-east. There is nothing on the ground to indicate the boundaries of the four lots of which it consists. The expression 'the open ground' in this judgment will refer to the rectangle consisting of the four vacant lots. The expression 'the H disputed ground' will refer to lots 583, 620 and 621. Along the three street frontages of the open ground there are pavements with kerbs and gutters which were presumably laid down by the Johannesburg Municipality. There are breaks in the kerbing in First Street, Voorhout Street and Bertrams Road, through which large vehicles can enter the open ground. Adjacent and to the north of lot 582 is lot 581, which is occupied by the first defendant and which has its southern boundary contiguous 1972 (2) SA p466 COLMAN J with the northern boundary of lot 582. The leasehold titles to lot 581 and to lot 580 immediately to the west of it, were transferred in 1937 and 1936 respectively to the wife of Mr. E. Morkel. She is now Mrs. A Grannum, having remarried at some stage after the death of Mr. Morkel in July, 1937. A building on lot 580 was referred to in evidence as 'Mrs. Grannum's store'. Immediately to the west of the block on which the open ground is situated is a block bounded by Miller Street, First Street, Voorhout Street and Second Street, which originally consisted of ten lots but B which is now consolidated lot 539. On that block Morkels has conducted its main business operations since some date between 1918 and 1922. I shall refer to that area as 'the Morkel block'.

The vital averment in the plaintiff's particulars of claim is to be found in para. 6 of that document. In its amended form it reads as follows: C 'The plaintiff and its predecessors-in-title, the said firm of E. Morkel, have continuously since 1918, alternatively 1922, alternatively 1923, or, further alternatively, continuously for more than thirty years, peaceably and openly exercised full rights of ownership over each of the said lots 583, 620 and 621 without leave or permission and adversely to the first defendant and its predecessors-in-title to such lots and all the world, and without recognising or acknowledging any title in the first defendant and its predecessors-in-title or any other person.' D The first defendant, in its plea, admitted that there had been peaceable and open use by the plaintiff, since 1956, of portions of the disputed ground, but otherwise it put the averments in para. 6 in issue. The second defendant in its plea denied all the averments in para. 6, and in the alternative pleaded that the plaintiff's possession (if any) E had been interrupted in 1932 and again in 1940, so that any prescriptive period which might have been running in favour of the plaintiff had thereby been interrupted. During the course of the trial counsel for the plaintiff made a formal concession from the Bar, whereby the scope of the enquiry was somewhat restricted. He stated that, notwithstanding the last alternative F averment in para. 6 of the plaintiff's particulars of claim, it would not rely upon any occupation or possession of the disputed ground by it subsequently to the calendar year 1953. The major enquiry in this action is therefore whether or not it has been proved that there was such uninterrupted possession of, or exercise of rights of ownership by G Morkels over, the disputed ground for any continuous period of 30 years between the beginning of 1918 and the end of 1953 as will support its claim to have acquired that ground by acquisitive prescription. [The learned Judge analysed the evidence and proceeded.] Counsel for the second defendant, while conceding that in the latter H part of the 30 - year period the use of the disputed ground by Morkels was sufficiently extensive to constitute detentio of that ground, did not make the same concession in respect of the earlier part of the relevant period. He argued that the need of Morkels for space additional to the adjoining premises occupied by them probably grew with the years, and that it is unlikely that they made extensive use of the open ground until about the middle '30s. Thus (so the argument went) the plaintiff had not discharged the onus of proving that, for the whole of the 30 - year period, Morkels acted in such a way as would constitute occupation by 1972 (2) SA p467 COLMAN J them of the disputed ground. While conceding that it was not necessary for the plaintiff to prove continuous use of every square yard of the area,

counsel said that occasional use for the parking of one or two vehicles would not constitute such use or occupation as is required for acquisitive prescription. A That argument is not without plausibility, and it became necessary for me to study the evidence of those witnesses who deposed to what Morkels were doing on the open ground during the early part of the relevant period. Because there was no cross-examination specifically directed to the question which I am now considering, the witnesses were not called B upon to differentiate between the earlier and the later years as clearly as one might have wished. But looking at their evidence in the light of the argument, I have come to the conclusion that they said enough to establish prima facie such use of the ground, in the early years, as amounted to detentio by Morkels. C As the evidence of those witnesses stands uncontradicted, I am of the view that the plaintiff discharged the onus resting upon it to show that the use of the ground, throughout the period, was sufficiently extensive to constitute physical possession. It will be convenient to turn now to the law relating to acquisitive prescription, and I shall start with a reference to the Prescription Act, 18 of 1943. The later Prescription Act, 68 of 1969, has no bearing D on the present enquiry. The relevant portions of sec. 2 of the 1943 Act reads as follows: '(1) Acquisitive prescription is the acquisition of ownership by the possession of another person's... immovable property... continuously for thirty years nec vi, nec clam, nec precario. (2) As soon as the period of thirty years has elapsed such possessor. E .. shall ipso jure become the owner of the property...' Those provisions do not constitute a codification or an exhaustive statement of the law relating to acquisitive prescription. They were intended to clarify or settle certain aspects of the law relating to prescription and did not enact more than was necessary for that purpose. They did not, therefore, repeal any of the common law provisions F relating to acquisitive prescription which were not inconsistent with what was enacted. It was so held by the Appellate Division in Swanepoel v Crown Mines Ltd ., 1954 (4) SA 596 (AD) at pp. 603 - 4, and in a number of subsequent decisions. G Among the common law requirements, in addition to continuous, uninterrupted possession, nec vi, nec clam, nec precario , are these: the possession must be adverse to the rights of the true owner (see Malan v Nabygelegen Estates , 1946 AD 562 at p. 574); and it must be full juristic possession ( possessio civilis ), as opposed to mere detentio (see Welgemoed v Coetzer and Others , 1946 T.P.D. 701 at pp. 711 - 712). H There must have been no acknowledgment by the possessor of the owner's title ( Voet , 44.3.9). The continuous possession for 30 years need not have been that of the claimant alone. He can rely on possession, of the appropriate kind, by his immediate predecessor or predecessors ( Voet , 44.3.9; Stephenson v Lamsley , 1948 (4) SA 794 (W) at p. 796). It is not necessary that every part

of the area be occupied or used; in some circumstances use of every square foot of an area would be impracticable, and the 1972 (2) SA p468 COLMAN J test is whether there was such use of a part or parts of the ground as amounts, for practical purposes, to possession of the whole. (See Pollock and Wright on Possession at p. 31, quoted with approval in A Welgemoed v Coetzer and Others , 1946 T.P.D. 701 at p. 720). Nor is absolute continuity of occupation required, provided that there is no substantial interruption. Much depends, in this regard, upon the nature of the property and the type of use to which it is put (see Boshoff and Another v Reinhold and Co ., 1920 AD 29 at p. 33; Mocke v Beaufort B West Municipality , 1939 CPD 135 at p. 142; Head v Du Toit, 1932 CPD 287 at p. 292). Those were cases relating to servitudes, but I have no doubt that the same principles apply when it is the acquisition of ownership by prescription that is in issue. It is not necessary, it appears, that the possessor claiming to have acquired ownership by prescription need have been bona fide either in C assuming or in retaining possession. Bona fides was a requirement of the Roman Law and the Canon Law, but the Roman-Dutch system (somewhat uncharacteristically) preferred formalism to equity in that regard. The justification is said to have been a need or desire to penalise neglectful owners. There may have been some social justification for that approach in a village society where it was easy for an owner to D supervise and inspect his property, though even there one might question the equity of favouring the cynical usurper at the expense of one whose fault was no more than idleness or negligence. In a modern society, where unimproved property is frequently held for long periods by owners who live far away, and sometimes even abroad, the social desirability of the rule may be questioned. But that is by the way. It E seems to be well established, and indeed it was common cause, that it is not necessary for the plaintiff in this case to show that it assumed or retained possession of the disputed ground under colour of right or in good faith. In enquiring whether or not the plaintiff has proved all the elements of F acquisitive prescription in this case, I need not delay over nec vi or nec clam . Although the evidence does not deal with the circumstances in which Morkels began to use the open ground, it can be safely accepted that it was not done by force. And what Morkels did, it did openly, so that all who looked could see. I am satisfied, therefore, that the occupation was nec vi, nec clam . G I shall consider next whether the occupation of the disputed ground was sufficiently continuous to support the plaintiff's claim. Counsel for the defendants did not rely upon the fact that at no time was every square yard of the disputed ground simultaneously in use by Morkels, or upon the probability that there were short periods during the daytime H when all the vehicles were away and there was little or nothing on the ground. For reasons which I have given, any such contention would, in my judgment, have been ill-founded.

Reliance was, however, placed upon the evidence (such as it was) which was said to have proved an interruption of possession in 1940. No witness was available to speak of that event, but counsel for the defendants relied upon certain documents which were, by consent, admitted as evidence of the facts recorded therein. What those documents reveal is this: 1972 (2) SA p469 COLMAN J In August 1939, the Johannesburg Medical Officer of Health complained to the Transvaal Provincial Administration of an accumulation of builders' debris and refuse on the open ground. The complaint was directed to the provincial authority rather than to the Central Government because the open ground, although registered in the name of A the Government, was held for educational purposes and was therefore under the national control of the Province, and, through it, of the Witwatersrand Central School Board. The builders' debris referred to was probably what remained of the material, referred to earlier in this judgment, which Morkels had placed, or caused to be placed, on the open ground. B This complaint was reported to the School Board, and an official of that body confirmed, after an inspection, that there was, indeed, debris on the open ground. He suggested that two loads should be removed and the rest used for levelling the ground by means of convict labour. An application to the prison for convict labour was completed early in C 1940; it referred to 26 convicts and 3 warders. In February of that year the School Board rendered an account to the Province in which it claimed 1 13s. as a refund of wages advanced to warders. There is an ink endorsement on that document, suggesting that the refund was made by cheque, and there is a receipt for such payment. Another document refers D to a charge of 13s. in respect of tools supplied for levelling of stands in New Doornfontein - 52 units at 3d. Yet another document refers to nineteen wheelbarrows transferred from a school in Johannesburg to 'Troyeville vacant stands' in February of 1940. These are indications, which I need not detail, that all these documents E relate to work done on the open ground in pursuance of the complaint by the Medical Officer of Health, and I am willing to assume that the necessary work was done. It is my view, however, that the work done in 1940 was not shown to have constituted or involved such an interruption of Morkels' occupation of the disputed ground as would defeat an otherwise valid claim to have acquired the ground by prescription. It can perhaps be inferred from the F documents that the work took two days, but I do not know for how many hours the convicts worked. It is not known how much of the area of the disputed ground the work involved, or how it was carried out. I have not lost sight of the fact that the onus is on the plaintiff to prove uninterrupted possession. It seems to me highly improbable, however, that the work was such that Morkels were deprived of the use of the G whole or the greater part of the disputed ground for any substantial period. Mr. Sly, although he remembered that convicts came to the ground, could recollect no details of the event, as he would surely

have done if it had involved a major disturbance of normal activities. The event seems to me to be analogous to those which were held to be no H interruption in Campbell v Pietermaritzburg City Council , 1966 (2) SA 674 (N) at p. 680. I would respectfully adopt the approach of the learned Judge at F. to H. on that page. Accordingly, I resolve this issue in favour of the plaintiff. There was some documentary evidence relating to the other interruption which was pleaded by the second defendant. But it was so scanty and so weak that counsel for the defendants placed no reliance upon it. 1972 (2) SA p470 COLMAN J Three issues which remain for consideration are whether it is proved that Morkels had full civil possession of the disputed ground for the requisite period, whether it has been shown that they were not occupying A under a precarium during the whole or any part of the period, and whether it has been shown that the possession was adverse to the owner's rights. These three elements in the plaintiff's cause of action are not mutually exclusive. To some extent they merge into and coincide with one another; indeed, as will later appear, I am of the view that the concept B non precario is but a special case of the wider concept 'adverse'. But these three features of the law of acquisitive prescription are dealt with separately in many of the authorities and they were argued separately in this case. I shall therefore discuss them, as far as that is practicable, as if each were a separate and self-contained requirement. C It will be convenient to begin with the requirement nec precario . The onus was on the plaintiff to prove that neither it nor its predecessors held the ground precario during any part of the relevant period. Unfortunately, Mr. E. Morkel and some others who might have been able to speak (one way or another) on this issue are no longer alive; but I must decide the matter on such information as is available. D The nature of a precarium is explained in Malan v Nabygelegen Estates , 1946 AD 562. A person holds precariously when he holds on sufferance or by virtue of a permission which is revocable at the will of the grantor. The permission may be granted expressly or tacitly ( Malan's case at p. 573; Wynne v Pope , 1960 (3) SA 37 (C) at p. 41). E During the period after 28th September, 1949, when the Government held the open ground in full ownership, the relevant permission (if there was any) would clearly have had to be the permission of the Government. The earlier period, during which the Government held the ground under a long F lease and the freehold owner was the Johannesburg Estate Co. Ltd., requires a little more consideration. The division of rights in respect of the land raises an interesting problem which will be discussed later in this judgment. But confining myself, at this stage, strictly to the question of whether there was or was not precarious tenure by Morkels, I would say this: the sufferance, if there

was any, would have had to be G that of the Government. The long leases, save for a clause restricting occupation by members of certain non-White groups of people, and a clause restricting the type of business purposes for which the ground could be used, contained nothing which detracted from the lessee's right to occupy or to allow others to occupy the property. And what is more H directly important in the present context is this: The freehold owner had no right, during the currency of the leases, to grant precarious tenure to Morkels without the consent of the leaseholder. The enquiry is, therefore, whether it has been proved by the plaintiff that Morkels did not, during the relevant 30 - year period or any part of it, occupy under an express or implied precarious grant from the Government. There is no direct evidence which either proves or negatives the making 1972 (2) SA p471 COLMAN J of such a grant. The files of the Transvaal Provincial Administration and of the Witwatersrand Central School Board relating to the open ground (which were, by consent, received as evidence of the facts recorded therein) contain no record of a precarious grant; nor do those A records of Morkels which are available. But that, in my judgment, is inconclusive. It seems to me that if the Government had entered into a formal sub-lease of the ground, that would be on record in its files. But I cannot make the same assumption about a precarious permission: If at some time between 1918 and 1953 an official of the State, the B Provincial Administration or the School Board, acting within the scope of his express or implied powers, had said to Mr. E. Morkel or to some other representative of Morkels 'You may use the ground (or continue to use it) until we need it', that, in my view, would not necessarily have been recorded by either party. Still less need there have been a record if there had been a conversation between two such C people as I have postulated, or some course of conduct, which gave rise to a tacit precarium. Some of the records admitted by consent indicate that the Government (a term I now use to include the Transvaal Provincial Administration and the School Board) did not at any stage contemplate the immediate use of D the open ground by it for any purpose. It was at one stage contemplated that it might become the site of a school to serve the area called Bertrams. Later, it was decided that the ground was unsuitable for that purpose, and there was some correspondence about its possible use for the purposes of another school. Later still that proposal was rejected. It is possible, therefore, that no representative of the Government ever E inspected the ground or otherwise became aware of the fact that Morkels were using it. But it is at least equally possible, it seems to me, that at some stage during the decades, an official became aware of Morkels' use of the ground, and that that led to some such conversation as I have postulated. F Occasions on which that might well have happened (if it had not happened before) were after a report of the Medical Officer of Health about the rubbish

on the ground in 1932, or after the similar complaint in 1939. It was argued, on behalf of the plaintiff, that if anything of that kind had taken place after the death of Mr. E. Morkel in 1937, his G widow (now Mrs. Grannum) would have known of it, because after her husband's death she took an active part in the administration of the plaintiff's affairs. Yet, according to her evidence, she knew nothing of any precarious grant. It must be noticed, however, that Mrs. Grannum was in Kenya between November, 1939, and May, 1940, and in Durban from 1944 to 1947. If permission was given during one of her absences, it might H not have been reported to her. Another possibility is that Mr. E. Morkel, before he began to make use of the open ground, properly and honourably sought and obtained precarious permission to do so. There is no reason why I should assume that Mr. Morkel behaved like a pirate and not like an upright and candid citizen. I would be inclined to say, on that analysis alone, that the plaintiff had failed to discharge its onus of proving that its tenure and that of its predecessors was non precario . But I need not confine myself to 1972 (2) SA p472 COLMAN J that reasoning because there was some important evidence, which bears on this issue, to which I have not yet referred. The evidence was given by Mr. Sive, the managing director of the first A defendant. He said that his company took occupation, in December, 1956, of a building on lot 851 which lies immediately to the north of lot 852 and thus has a boundary common to itself and to part of the open ground. As part of the building was not needed by the first defendant, that part was let to the plaintiff, and good neighbourly relations were B established between Sive and Mr. Beyers, who was then the manager of Morkels. In about the middle of January, 1957, Sive said, he asked Beyers if he (Sive) could make use of the open ground for the parking of vehicles and other things such as machinery. Beyers replied, according to Sive, that the ground belonged to the School Board and that Morkels had permission C to use it provided that they kept it neat and clean. Beyers suggested that Sive seek like permission from the School Board. Sive says that he acted on the suggestion and spoke to the secretary of the School Board, who gave him permission to use the four lots. Later he mentioned that fact to Beyers, who replied 'that's fine', or words to that effect. D Thereafter, Sive said, he parked vehicles on lots 582 and 621. At one stage the first defendant had a machine standing on lot 583, and for some years it had a large tank on lot 621. It is, perhaps, worth mentioning that there is no record in the School Board files, or other Government records, of the permission which Sive claims to have been granted. E Sive's evidence stands uncontradicted. But Beyers is no longer alive, and I was rightly reminded by counsel for the plaintiff that, because of that, a

10

cautious approach to Sive's evidence is called for. Moreover, it was argued, it would be unsafe to accept Sive's testimony about his conversation with Beyers because of certain unsatisfactory features of his evidence on peripheral matters, and because of certain probabilities. F Sive was cross-examined at considerable length about the details of the transaction whereunder the first defendant acquired the open ground from the Government, and I was told, during that line of G cross-examination, that it was directed to credibility. But nothing to Sive's discredit emerged from that enquiry and no reliance was placed upon it in argument. One of the contentions that was raised against Sive was based upon the fact that counsel for the first defendant, when putting the evidence which Sive would give to a witness, had indicated that Beyers had told H Sive that Morkels had 'verbal' permission from the School Board to use the open ground. In evidence, Sive said that Beyers did not tell him whether the permission was 'verbal' or in writing. What I have to decide is whether this discrepancy points to untruthfulness on Sive's part, or to a misunderstanding between him and the first defendant's legal advisers. A somewhat similar criticism was based upon a letter which was written in 1970 by the first defendant's attorneys in pursuance of Sive's instructions. That letter was so worded as to suggest (though it did not 1972 (2) SA p473 COLMAN J explicitly state) that a letter which had been addressed to the first defendant some five years before had never been received. Sive, when he came to give evidence, admitted that the earlier letter had been received, although it had been lost. And he added that at the time when he instructed the first defendant's attorneys to write the 1970 letter, A he remembered the earlier one. He could not explain why the first defendant's attorneys had used language suggesting the contrary. Neither of these incidents raised any substantial doubts in my mind about the veracity of Sive who was, in all other respects, a satisfactory witness. In each case it would have been pointless for Sive B to lie, either to the attorneys or to the Court. If he had chosen to be untruthful in his evidence he could easily have said that Beyers had used the word 'verbal'; and he could have asserted that the 1965 letter had never been received. It would have been impossible to expose such lies if Sive had chosen to tell them; but there was no reason that I can see why he should have wished to lie on either point. It is my view that the discrepancies arose out of misunderstandings such as are C not uncommon in respect of minor points which are being conveyed by a litigant or witness to his attorney. Nor am I impressed by the contention that Sive's version is improbable. D It is unlikely, it was argued, that the School Board would have given permission to Morkels, or to Sive, to use the open ground. I have already given my reasons

11

for thinking that there was no reason why the School Board should not have done so. I have also expressed my views on the contention that such permissions would have been on record if they had been granted. E Finally, it was argued that it was improbable that Beyers would have behaved as Sive said he did. If the proposed use by the first defendant of the open ground had been extensive, there might have been such an improbability, because the use would have been prejudicial to Morkels' enjoyment of the ground. But the first defendant's business was not F large at the time; it had few vehicles, and its contemplated use of the ground would not have interfered materially with the activities of the plaintiff. It is very probable that Beyers knew that. And, in view of the friendly relationship between the two firms, there was no reason why he should not have been helpful. G I accept Sive's evidence, and I regard the statement made to him by Beyers about Morkels' tenure of the open ground as significant. The conversation took place after the expiry of the prescriptive period for which the plaintiff contends; and Beyers did not say when the permission had been granted by the School Board. There was, therefore, no admission by the plaintiff's manager of precarious tenure during the relevant H period. Beyers may have been referring to a transaction during the previous three years, whereby Morkels, unconscious of the fact that bold usurpation had fructified into ownership, sought to legitimise it, and were told that they could continue to occupy on sufferance. But he might equally well have been speaking of a permission granted many years, or some decades, before his conversation with Sive. If the onus had been on the defendants, Sive's evidence would not 1972 (2) SA p474 COLMAN J have discharged it. But it rests on the plaintiff. And, when I take Sive's evidence in conjunction with the other matters I have mentioned, I am constrained to hold, as I do, that the plaintiff has failed to prove, as a fact or a probability, that for the whole of the requisite A period it and its predecessors occupied otherwise than under precarious tenure. Having reached that conclusion, I am bound to hold against the plaintiff, and need go no further. But as my decision may well be taken on appeal, I think it proper to express my views about two other issues upon which I have had the benefit of full and able argument. The first of those relates to the nature of Morkels' possession of the B disputed ground. It was held in Welgemoed v Coetzer and Others , 1946 T.P.D. 701, and reiterated in subsequent cases (including the Transvaal case of Molotlegi v Brummelhoff and Another , 1955 (1) SA 592 (T) , and decisions in the other three Provinces) that the possession C required to found acquisitive prescription is full possessio civilis as opposed to mere detentio or naturalis possessio . It is not enough, it was held, that there should have been physical possession; the claimant must, in addition have had, throughout the relevant

12

period, the animus domini (see the judgment of MURRAY, J., in Welgemoed's case at pp. 712 et seq. ). The main reason why the plaintiff failed in that case was D because the necessary animus was not shown to have existed, and the claim of the present plaintiff must similarly fail unless I am persuaded that the occupation of the disputed ground by Morkels was accompanied by the mental state which is an element of civil possession. When, as sometimes happens, the person in occupation believes, E mistakenly, that he is the owner of the property occupied, the animus is clearly present. However, as I have already stated, our law does not require that the possession be bona fide; but the animus domini can co-exist with mala fide possession. The person who holds animo domini need not think that he is the owner; it is sufficient if he intends to keep the land or other res as if he were the owner or (as Voet puts it in 44.3.9 ( Gane's trans., vol. 6, at p. 579)) 'with the intention of keeping it for himself'. That concept is explained and elaborated in a number of authoritative works on jurisprudence and on possession, in which it is pointed out that even a thief may have civil possession. In Sohm, Institutes; The Law of Things , para. 67, we find the following passage: G '... I may hold a thing in my hands and may intend, at the same time, to hold it for myself alone... in spite of my knowledge that I am not the owner, it being my decided intention to keep the thing for myself alone... An example of the latter alternative occurs in the case of a thief... In all such... cases I have not merely the corpus , but also the animus of possession; the will coinciding with the physical relationship. I not only hold the thing in my hands, but intend to hold it for myself alone. This is the animus rem sibi habendi , or, as H it is called by modern writers, the animus domini . It is my intention to exclude every one else from the thing.' Salmond on Jurisprudence , 11th ed., p. 322, sub 'The Animus Possidendi' has it thus: 'The intent necessary to constitute possession is the intent to exclude others from interfering with a material object. Whether or not the possessor intends to use the thing himself, he must intend to exclude the interference of other persons... The animus sibi habendi is not necessarily a claim of right. It may be consciously wrongful. The thief has a possession no less than that of a true owner. The possessor of a thing is not he who has, or believes that he has, a right to it, but he who intends to act as if he had such a right.' 1972 (2) SA p475 COLMAN J And the following passage appears in Savigny on Possession (Perry's trans., pp. 72 - 3): 'The animus possidendi must consist in the intention of exercising ownership... and he must contemplate dealing with it practically just as an owner is accustomed to do by virtue of his right; and consequently A not as one recognising anyone better entitled than himself .'

13

(The underlining is mine). It is not difficult to apply the concept embodied in these passages to the mala fide holder of a movable. The bicycle thief intends to keep and use the stolen bicycle as if it were his own. He hopes to escape detection, and if he is confronted by the true owner or the police he intends, possibly, to dispute the owner's claim by putting the identity B of the bicycle in issue, or by asserting a sale and delivery to himself. That may be contrasted with the state of mind of an honest advocate who enters a colleague's chambers during the absence of the latter, and takes away a book. He may know that it is a book which the owner seldom, C if ever, uses; and he may intend to keep and use it for a long time. But his intention is not to keep the book as his own. He intends to return it to its owner if ever, and as soon as, he is asked to do so. He, in my view, has detentio , but not civil possession. When it is land that is occupied by someone other than the owner, and without right or colour of right, there are, similarly, various states D of mind which the occupier may have. He may intend to give up occupation when he no longer needs the land, or sooner if asked by the owner to do so. He may hope and believe that his occupation will never be detected and disturbed, or that he will have acquired a prescriptive title before that happens. Or he may intend, if necessary, falsely to put forward a E claim that he owns the land, hoping, on some basis, to succeed therein. Was it proved, in this case, that throughout the relevant period Morkels had the necessary animus possidendi? I think not. Sly said that he assumed that the open ground belonged to Morkels. But he was a mere underling, and his mind was not the mind of the firm. What had to be F proved was the state of mind of Mr. E. Morkel during the periods when he owned the business, and of the boards of directors of the two companies which owned the business and occupied the open ground during parts of the 30 - year period. I should add that the state of mind of the G liquidator who was briefly in control during 1922 could also be relevant. But I shall not complicate the enquiry in that regard. Mr. E. Morkel was not available to testify. And the only director who was called was his widow (now Mrs. Grannum), who started to take an active interest in the affairs of the plaintiff company after E. Morkel's death in 1937. H Mrs. Grannum, during cross-examination, said this with reference to the open ground, and in respect of the period after 1937: 'We considered it as ours. We used it. We were quite resolved to stay there. By 'we' I mean the company.' But she went on to concede that there was no discussion of the matter, so that she was in no position to speak of the state of mind of the other directors. At

14

best for the plaintiff, she was reflecting her own state of mind, formed without knowledge of all that had taken place, or been said or thought, before 1937. 1972 (2) SA p476 COLMAN J I am by no means sure, however, that Mrs. Grannum was even doing that accurately, for she was by no means a perfect witness. Indeed, counsel for the plaintiff conceded that she was an unsatisfactory one. She was A intelligent and articulate, but not very logical when called upon to deal with abstract concepts. She tended, at times, to argue the plaintiff's case rather than to state facts, and either did not understand, or pretended not to understand, the difference between recollection and contention. Moreover, when dealing with a directors' meeting held on 30th January, B 1963, she conceded (with some reluctance, so it seemed to me) that the plaintiff's managing director, Mr. Beyers, had told the meeting that 'at any time the vacant stands adjoining the company's premises could be closed off'. C There can be no doubt that Beyers was referring to the open ground and that, in the context, the 'closing off' referred to and meant the exclusion of the plaintiff from the ground. But Mrs. Grannum said later in her evidence that, when the announcement was made, none of those present expressed any surprise or asked how that unfortunate situation had arisen. D That, of course, was long after the expiry of the allegedly prescriptive period. It may be assumed that the plaintiff's directors were unaware of the law relating to acquisitive prescription. But Mrs. Grannum had been told of nothing which had happened between 1937 and 1963 which had altered the nature of the plaintiff's tenure of the open ground, or its E mental attitude to that tenure. Nor does the minute book reflect any such change. It seems probable, therefore, that the mental attitude of the company and its predecessors during the relevant 30 - year period was not different from that which was voiced by the managing director on 30th January, 1963; at any rate, the contrary was not proved. F That state of mind was not, in my view, the animus domini . It was not consistent with an intention on the part of Morkels to keep the disputed ground for themselves, or to hold it 'as of right' (as some of the authorities put it). In my judgment it was rather the state of mind of a precarious holder or of a trespasser who knew that his occupation could G be terminated at any time, and who intended to give up occupation if called upon to do so. I would add this: in February, 1937, the plaintiff wrote to the Secretary for Lands, asking whether the Government would be willing to let lot 582 to the plaintiff on a monthly tenancy. The request was refused. It has been suggested that what the plaintiff wanted to hire H was the whole of the open ground, which it mistakenly referred to as lot 582, and there is plausibility in that suggestion. The plaintiff was using the open ground as a whole, and it seems

15

unlikely, if it thought it necessary or desirable to obtain a lease of part of it, that it should have chosen one lot only, and the one furthest from its own business premises. But there may have been some good reason for doing that, and I do not feel justified in elevating what is no more than a conjecture into an assumption that when the plaintiff wrote 'lot 582' it means 'lots 1972 (2) SA p477 COLMAN J 582, 583, 620 and 621' and thus overtly recognised the title of the Government to the disputed ground. That such a recognition would be fatal to the plaintiff's claim appears from Pratt v Lourens , 1954 (4) SA 281 (N) , and other authorities, including one which I have already cited. A But what I can say is this: there seems to be no reason why the mental attitude of the plaintiff to the disputed ground should have been any different from its mental attitude to lot 582. And whatever the reason may have been for seeking a lease of lot 582 only, it can be inferred B from the request that the plaintiff did not consider itself to be holding any part of the open ground 'as of right' or animo domini . The inference is, perhaps, not a very strong one. But in my view it adds weight to what I have already said on the question of animus. Counsel for the plaintiff sought to meet the difficulty by arguing that an inference of full civil possession arises from the fact of occupation C unaccompanied by any manifest recognition of the true owner's rights. I have tried to make it clear that factum and the animus are two separate elements in that type of possession, each of which the plaintiff has to prove. And I have given reasons for my view that what Morkels did is inconclusive as to what they thought. But counsel pressed upon me an obiter dictum in Campbell v. D Pietermaritzburg City Council, 1966 (2) SA 674 (N) at p. 682. The learned Judge found as a fact (at p. 679) that the claimant in that case had at all material times believed that the ground in dispute was part of his own farm, and had occupied it in that state of mind. That finding resolved, in favour of the plaintiff, the question of whether there had been occupation with the intent necessary to constitute civil E possession. But the learned Judge went on, on p. 680, to make the observations relied upon by counsel for the present plaintiff. They began with the words 'in any event', which suggest that the Court was about to enunciate some approach to civil possession alternative to the finding which he had just made about the plaintiff's state of mind. But F what followed suggests that the learned Judge was not doing that. The passage discusses adverse user, and its relationship to civil possession; but he deals with conduct, not state of mind, and I cannot read what he said as authority for the proposition that there is no need to prove the subjective element in civil possession. If the passage did G constitute such authority, it would be in conflict with Welgemoed v Coetzer and Others, supra , a case which I am

16

bound to follow unless I believe it to be clearly wrong, and about which I hold no such belief. I am of the view, therefore, that we have here another essential element in the plaintiff's cause of action which it has not proved. H Finally, there is the question of whether or not the possession by Morkels is proved to have been adverse. The phrase which appears in some of the authorities is 'adverse to the owner', but there is no doubt that what is required is possession adverse to the rights of the owner. That was common cause in the present case. The requirement that the possession be adverse is of great importance in the law of acquisitive prescription because it is one aspect of that requirement which, more than anything else, ensures that it is the 1972 (2) SA p478 COLMAN J idle and slovenly owner, and not one who is alert but incapable of acting, who may lose his property by prescription. A contention put forward on behalf of the second defendant (I am not A sure whether counsel for the first defendant adopted it) was that possession is not adverse unless the acts of the possessor interfere with or are inconsistent with the purposes for which the owner intends to use the land. Reliance was placed, in that regard, upon Williams Brothers Direct Supply Stores, Ltd . v Raftery, (1958) 1 Q.B. 159, and B upon a passage, which seems to be based upon that case, in Megarry on Real Property , 4th ed., p. 529. The passage reads as follows: 'If the owner has little present use for the land, much may be done on it by others without demonstrating a possession inconsistent with the owner's title; thus cultivating the land and later using it for training greyhounds may fail to be 'adverse possession'.' If that were our law, it might well be destructive of the plaintiff's C claim, because it seems clear that neither the Johannesburg Estate Co. Ltd. nor the Government wished to make use of the disputed ground during the relevant period, and nothing that Morkels did on it could (acquisitive prescription apart) have prejudiced their use of the ground at any future time. D But English authority is an unsafe guide in a South African case relating to acquisitive prescription. It is true that the English law, like our own, is derived largely from Roman law. But there are English statutes which play a part in many of the decisions there; and even the decisions which rest on common law sometimes reveal developments and approaches which are in conflict with our own rules. The fact that we, E in South Africa, have a system of land registration which does not operate (or does not operate everywhere) in England may account for some of the differences. I am not sure that it accounts for all.

17

A study of the judgments in the Williams Brothers case, supra , shows that the decision did not rest simply (if it rested at all) upon an interpretation of the term 'adverse'. The real enquiry was whether, in F terms of a relevant statute, the owner had been 'dispossessed', and the ratio decidendi was that he had not been dispossessed within the meaning of that statute. In none of our cases, as far as I am aware, was there enquiry into or debate about the question whether or not the claimant's use of the land G was in conflict with the purposes for which the owner intended to use it, or as to whether or not the owner had been dispossessed. And if the law had been as indicated in the passage quoted above from Megarry , many of our cases would, I think, have been decided differently from the way in which they were decided. I am satisfied, therefore, that the H principle as stated in the passage which I have quoted from Megarry forms no part of our law. In Malan v Nabygelegen Estates, supra , there is a reference to the concept of adverse user at p. 574. Such user is there contrasted by WATERMEYER, C.J., with occupation 'by virtue of some contract or legal relationship such as lease or usufruct which recognises the ownership of another'. But the learned CHIEF JUSTICE was not there propounding an exhaustive definition of 'adverse user' or its contrary: he was merely giving familiar examples of user which would not be adverse. 1972 (2) SA p479 COLMAN J Other authorities show that the concept of non-adverse use or occupation has a wider field of application than that exemplified in the dictum of WATERMEYER, C.J. Without myself attempting a full definition (which is not necessary for the purposes of this case), I go so far as to say that A no use, occupation or possession is adverse, for the purposes of the law of acquisitive prescription, unless the owner has a legal right to prevent it. The proposition, so stated, covers part (although not the whole) of the ambit of the maxim contra non valentem agere nulla currit praescriptio . B The maxim reflects the English common law. That appears from Broom, Legal Maxims , 7th ed., p. 680, and from Salmond on Jurisprudence , 11th ed., p. 478, note (k) . In Dalton v Angus, (1881) 6 A.C. 740 at p. 749, FRY, J., referred to and justified the maxim in language which appears to me to be consonant with the principles of South African law. He is reported, at p. 773, as having said this: '... it is plain good sense to hold that a man who can stop an C asserted right or a continued user and does not do so for a long time, may be told that he has lost his right by his delay and his negligence... But there is no sense in binding a man by an enjoyment he cannot prevent, or quieting a possession which he could never disturb'.

18

D Having quoted the maxim, together with another well-known one, the learned Judge went on to say that they showed that 'prescription and assent are only raised where there is a power of prohibition'. The reasoning of FRY, J., was approved in Dalton v Angus, supra , by Lord PENZANCE at p. 803 and by Lord BLACKBURN at p. 823. Neither Voet nor van der Keessel , when dealing with acquisitive prescription (a passage cited to me from Voet , 44.3.11, appears to deal with extinctive prescription) propounds the rule in the full terms of E the maxim, although both writers recognise specific cases falling within the ambit of the rule. But Wessels in his History of Roman-Dutch Law , at p. 643 refers to 'the rule praescriptio non currit contra non valentem agere' and seems to indicate that it is part of our law. And there is at least F one of our venerable text writers who unequivocally quotes the rule or part of the Roman-Dutch law. I refer to van Zurch , who appears to have been the author of an important work on the civil law of the Netherlands first published in 1711. In the 4th (1764) edition of van Zurck's Codex , at p. 887 and under the heading 'Prescriptie, Verjaring, Verloop van G Tyd', we find para. XIII, wherein the writer, without comment, says: ' non currit praescriptio, contra non agere valentem ', and as authority for that proposition he quotes, inter alia , a work of Carpzovius which is not available to me. H Lee, in his Introduction to Roman-Dutch Law , 4th ed., pp. 148 - 9, says that acquisitive prescription does not run against 'those who are disqualified from asserting their rights', and Lee and Honor on Property , para. 51, say: 'Time does not run against minors or others who are not in a position to assert their rights.' In De Jager v Scheepers and Others , 1880 Foord 120, DE VILLIERS, C.J., held that acquisitive prescription does not run against a fideicommissary while the fideicommissum is in force. In giving his reasons for that conclusion he did not state the rule in the wide terms of the maxim. But his reasoning and the range of examples he cited seem to 1972 (2) SA p480 COLMAN J me to indicate an acceptance, as part of our law, of the rule embodied in the maxim. And in Payn v Estate Rennie and Another , 1960 (4) SA 261 (N) , BROOME, J.P., accepted and applied the following definition of 'adverse user' in Bell, South African Legal Dictionary: 'the use and enjoyment of a thing without molestation by, and in A conflict with the rights of the owner thereof'.

19

I interrupt my citation of authority to discuss the relevance of the rule to the case before me. It will be remembered that during the greater part of the allegedly prescriptive period the disputed ground was held by the Government, not in full ownership, but under a B registered long lease. The freehold owner was the Johannesburg Estate Company Ltd. In order to succeed, therefore, the plaintiff must show that during that part of the relevant period, its possession was adverse to the rights of the freehold owner. The fact that the Government later acquired freehold title does not detract from the validity of that proposition. C But in terms of the rule which I have been discussing, time did not run against the freehold owner unless the occupation of the ground by Morkels was in conflict with the legal rights of that owner, so that the owner had the right and the power to terminate such occupation. But what D right did the Johannesburg Estate Co. Ltd. have to eject a trespasser or otherwise to terminate his occupation after it had parted with possession of the ground under registered long leases? There is ample authority for the proposition that, trespass being an infringement of possession rather than of ownership, an owner who has parted with possession cannot sue for trespass unless he can show that E his reversionary right to possession is injured by the trespass (see Thomas v Guirguis , 1953 (2) SA 36 (W) ). Thus the Johannesburg Estate Co. Ltd., if it had indeed parted with possession in terms of the leases, would have had no right to interfere with the use of the disputed ground by Morkels or by anyone else, during the currency of the F leases, unless the use was in breach of some condition in the leases or was such as to prejudice its residuary rights as owner. The decision of the Appellate Division in Swanepoel v Crown Mines Ltd ., 1954 (4) SA 596, though not precisely in point, is illustrative of the relevant principle. There, as here, the plaintiff claimed to have G acquired an area of land by acquisitive prescription; but an exception to her declaration was upheld, one of the grounds being that the possession had not been adverse to the rights of the owner. The reason was that the ground was held under mining title, and in terms of the Gold Law the rights to the surface were vested in the State. The registered owner, therefore, had no rights in respect of the surface, and the occupation of the ground had constituted no infringement of such H rights as it retained. It was entitled neither to authorise nor to permit the use of the ground by the plaintiff, and as that use was not alleged to have prejudiced the reversionary rights of the owner, no case of adverse user had been made out ( per FAGAN, J.A., at p. 606). It seems to me that the same reasoning must apply in a case where the owner's right to use, and to permit the use, of the ground, has been suspended, not under the Gold Law, but under a lease. And here, once more, van Zurck supports the case of the defendants. In the work to 1972 (2) SA p481

20

COLMAN J which I have already referred, and at the page cited, I find para. XII, which reads as follows: 'Praescriptie den huurder, die het goed van den verhuurder van een derden had laten praescriberen, tegengeworpen zynde, schaad den verhuurder niet.' A Again, the writer cites a work by Carpzovius which is not available to counsel or to me. It was argued that Wynne v Pope , 1960 (3) SA 37 (C) , is in conflict with the approach I have been enunciating, and it is true that in that case, at pp. 40 to 41, one finds the following observation about the effect of Malan v Nabygelegen Estates, supra: 'The effect of this judgment is accordingly that the mere fact that B the owner of the servient tenement is unable to prevent, and is in fact obliged to tolerate, the owner of the dominant tenement coming on his property to exercise certain rights, does not thereby render it impossible for the owner of the dominant tenement to claim to have acquired such rights by prescription.' That, in so far as it may purport to be a general proposition of law, C seems to me to be in conflict with the authorities which I have cited and with what is said to be the rationale of acquisitive prescription. But, with great respect to the learned Judge who propounded it, I would say that it is not the law. It seems to have been based on a misreading of Malan's case, and in particular upon a failure to appreciate the fact that there were two alternative defences raised in that case, as appears D from the top of p. 567 of the report. The defendant relied, firstly, upon a grant of a right to take water, which (it averred), was binding upon the plaintiff; alternatively, if the grant was not binding upon the plaintiff, the defendant relied upon prescription. In holding that the plea of prescription was not excipiable the Appellate Division had to E consider the plea on the assumption that the grant did not bind the plaintiff. Hence, as I read the judgment, there was no room for an approach to the question of prescription on the footing that the defendant was exercising rights or committing acts which the plaintiff was obliged to tolerate. Nor, in my view, does the case of Salisbury Municipality v Jooala , 1911 F A.D. 178, conflict with the statement of the law which I have set out. The owner of land which was riparian to a stream was there held to be entitled to restrain the pollution of the stream which, it alleged, was detrimental to the health of some of its tenants who occupied land some two miles downstream of the place at which the pollution was taking G place. But, quite apart from other grounds of distinction which have been raised in argument, the case seems to me to be distinguishable from the one with which I am concerned because the plaintiff owned riparian ground which it had not let to anyone, between the point of pollution and the ground which it had let. That appears from the middle of p. 184 of the report, and it follows that in respect of such ground, at any H rate, the plaintiff had in no way divested itself of the right to

21

interfere with the nuisance; and if it had neglected to do so, prescription might well have run against it. Senior counsel for the plaintiff, whose industry and ingenuity in this case was matched only by that of his opponents, has argued that, despite the long leases, Morkels' occupation was adverse to the rights of the Johannesburg Estate Co. Ltd.; and he based that contention on more than one ground. In the first place he argued, on the authority of 1972 (2) SA p482 COLMAN J Jadwat and Moola v Seedat , 1956 (4) SA 273 (N) , that the mere existence of a lease does not negative the right of the registered owner of land to eject a trespasser from that land. It must be shown that the owner parted with possession to the lessee. A In response to the suggestion that the registration of a long lease constituted a symbolical delivery of the leased property to the lessee, and so vested him with possession, counsel invoked Bodasingh's Estate v Suleman , 1960 (1) SA 288 (N) . There a long lease had been registered, but it was held that the registration did not divest the freehold owner B of locus standi to eject the respondent from the leased property on which he was assumed to be a trespasser. There is a dictum on p. 291 of the report which appears to suggest that the registration of a long lease can never constitute such delivery of the leased premises as will divest the owner of possession. I am not sure, however, that the Court C intended to lay down so wide a proposition: clearly it was not necessary for it to do so on the facts before it. I say that because at the time when the lease was entered into, and at the time when it was registered, the respondent was already in occupation. Thus neither the contract nor its registration constituted delivery to the lessee of free and D undisturbed possession. It was the contractual duty of the owner to have the trespasser ejected, and he must consequently have had a legal right to do so. That point is made at p. 290 of the report, and it was, in my view, the real basis of the decision. I incline strongly to the view that when the leased property is unoccupied, the registration of a long lease, without anything more, constitutes a transfer of possession of the leased property, so that it E is the tenant, and not the owner, who is vested with the right to eject anyone who, thereafter, wrongfully assumes occupation of the property. That view seems to be supported by Fockema Andreae in his Oud-Nederlandsch Burgerlijk Recht , 1906 ed., p. 192, and to be consistent with modern concepts of traditio in respect of immovable F property as recognised in such cases as Breytenbach v van Wijk , 1923 AD 541 at p. 547. But even if I am wrong in that regard, very little was required, in addition to the registration of the leases, to divest the Johannesburg G Estate Company Ltd. Of possession. According to van Oven, Leerboek van Romeins Privaat Reg , 3rd ed., pp. 128 - 9, a mere pointing out of the ground would have

22

sufficed for that purpose in the later Roman law; and there is no reason to think that our own law requires more. There is no evidence which tells me whether or not there was a pointing out or any other physical transfer of possession from the Johannesburg H Estate Co. Ltd. to the original lessee, one Evans. It is not unlikely that in one way or another Evans received possession, even if the registration of the lease did not of itself make him the possessor of the open ground. And it must be remembered that the onus is on the plaintiff to prove adverse possession by Morkels; it was for the plaintiff, therefore, to prove that the registered owner had a legal right to eject Morkels; and to that end it had to prove that possession, throughout the relevant period, was vested in the owner. Assuming that something more than the registration of the leases was required to divest the 1972 (2) SA p483 COLMAN J owner of possession, there is no proof and, in my judgment, no probability that that 'something more' did not take place either when Evans held the leases or during the time when the Government was the lessee. Yet another reason why I regard the contention of the plaintiff's counsel on this point as unsound, is this: even assuming that the A Johannesburg Estate Co. Ltd. retained possession of the disputed ground during the currency of the lease, it would not have been manifest to it (as the law of acquisitive prescription requires) that Morkels were on the ground without any valid title derived from the lessee. I shall refer to authority in support of that point when dealing with the final B contention put forward by plaintiff's counsel. The penultimate contention was this: that the freehold owner had the right, even if possession had passed to the tenant under the leases, to prevent the occupation by Morkels because that occupation, if allowed to continue, could lead to acquisition by prescription and thus prejudice C the owner's reversionary rights. It was suggested that Salisbury Municipality v Jooala, supra , supported that argument; but I have already said enough about the facts of that case to show that that is not so. For the rest, all that I need say is that it is a circular argument; it begs the question by assuming the correctness of the proposition which it is intended to prove. Lastly, it is said that the freehold owner had a right to prevent D Morkel's use of the ground because that use was in conflict with the leases. The leases prohibited the carrying on of trade or business on the lots without the consent of the lessor, and the only consent given was for the limited purposes of 'warehouses, storing of goods and E necessary stables'. Morkels used the ground for activities incidental to the warehousing, storing of goods and stabling. But it is common cause that they also used the ground for purposes incidental to another business activity - namely, the conveyance

23

of goods in circumstances unrelated to storage. There was, therefore, conduct in breach of the leases which the F freehold owner had a legal right to prevent. But counsel for the defendants rely, in that regard, upon the following passages in Welgemoed v Coetzer and Others, supra at pp. 721 - 2, which consist largely of extracts from earlier cases: '... the position must be regarded from the point of view of what was either actually brought to the notice of the owner... or what G should have been brought to his notice had he visited the area and exhibited ordinary care in looking after his property... There must be proof of... some act or acts of appropriation so patent as to constitute reasonable notice to the owner and others of the setting up of an adverse claim to the land... No user can be sufficient unless during the whole of the period the user is enough... to carry to the mind of a reasonable person... the fact that a continuous right of enjoyment is being asserted and ought to be resisted, if resistance to H it is intended'. Here there was user by Morkels which would have been manifest enough to anyone who looked at the ground. But if the owner's representative had seen it, it would have appeared to him to be fully consistent with use of the ground, within the terms of the lease, under a sublease or precarious grant by the Government. There was no proof that upon reasonable inspection the freehold owner would have been able to see that the land was being used, partly in conjunction with an 1972 (2) SA p484 COLMAN J unauthorised type of business. That, I think, answers the plaintiff's last argument and relieves me of the need to decide whether, in any event, a mere contravention of the lease, coupled with an authorised, or apparently authorised user, can be regarded as reasonable notice of the A setting up of an adverse claim to the ground, and so found prescription. My conclusion is that the plaintiff failed to prove civil possession, nonprecarious tenure or adverse user, and must therefore fail, with costs. I have given thought to the suggestion that, in the exercise of my discretion, I should make some apportionment of the costs. I have B come to the conclusion that I should not do so. I am influenced, in that regard, by my view that the documents which were primarily introduced for the purpose of showing interruption in 1932 and 1940 had some relevance to an issue on which the plaintiff has failed. I grant absolution from the instance with costs in favour of both C defendants. The costs are to be taxed on the basis that each of the defendants was justified in employing two counsel. Plaintiff's Attorneys: Webber, Wentzel, Hofmeyr, Turnbull & Co . First D Defendant's Attorneys: Edward Nathan, Friedland, Mansell & Lewis . Second Defendant's Attorney: Deputy State Attorney.

24

25