Deep in the heart of Mpumalanga
Province there is an African farm with the beautiful name of Kaalbooi. This farm,
Kaalbooi, is now inextricably linked to acquisitive prescription and it started
with the first sub-divisional transfer during 1936 some 79 years ago.
How did it all come
about?
Client asked me to
draft his will which, according to him, should be very simple and
straightforward: His two sons should inherit his house and Kaalbooi in equal
shares. I informed him that the inheritance of his house in a residential area
is fine, but not so with the farm. He is not allowed to sub-divide agricultural
land and I gave him the reason – the Sub-Division of Agricultural Land Act prohibits
such a sub-division but for certain provisions in the Act.
He looked puzzled as
if there was something he could not understand. He turned the tables on me; to
my surprise he stated coolly and calmly that he was already in possession of
50% shares in Kaalbooi. And to crown it all, he told me that since he took
transfer of Kaalbooi, he never encountered anybody at all who claimed to be a
co-owner – for an “…
uninterrupted period of thirty years ...”? He told me what he, his late wife and boys
did on the farm. All of a sudden these “simple and straightforward”
instructions became complicated, hugely complicated.
I asked him: “How on
earth can that happen?”
He got up, went to
his shelf and pulled out a lever arch file and gave me the original title deed.
It was in pristine condition.
It was true – he
obtained 50% shares during 1981. He bought it from Widow Mrs B. Her 50% shares were
subsequently transferred to him. The title deed was silent about the remainder
of the shares.
I perused it [actually
it felt as if I devoured the title deed] and looked for the most obvious
endorsement in it, namely Ministerial consent. It was glaringly lacking. What
to do now was my next problem? I took it to my office and started reading law.
I became satisfied
that there were three guiding statutes that should be closely studied and these
three statutes are the following [I studied it in this order]:
2. The
Prescription Act 68 of 1969 that commenced on 1 December 1970 [“the 1969
Prescription Act”] &
3. The
Prescription Act 18 of 1943 that commenced on 19 April 1943 [“the 1943 Prescription
Act”].
1. Widow
Mrs B’s husband passed away shortly prior to the Act commenced.
2. The transfer to his widow and subsequent to my client was regular & lawful.
After the initial
study of the above three statutes, it was time to get the background story and
of course the evidentiary material from client. I visited client again at his
house and asked him for proof of his allegations. He wasn’t fazed and presented
me with the most authentic evidence an attorney could wish for – his oral instructions
matched his photographic evidence & documentary evidence in every material
respect.
CLIENT’S EVIDENTIARY
MATERIAL
The personal
circumstances of my client, his immediate family and friends are so endearing
and humane – I think it is the stuff for storybooks but not for now.
He told me in graphic
detail how and what they did on the farm – “… openly and as if he were the owner thereof for an
uninterrupted period of 30 years …”
Client handed me
faded and tattered photographs in well-thumbed photo-albums. Almost all of these
photos have anecdotes with dates in either his handwriting or his late wife’s
or their children’s. Besides the albums there were also stacks of photographs
in its original envelopes complete with receipts of payment for the prints.
That enabled me to put dates to the events. I could tie his stories to specific
dates which in turn corroborated his version of events.
There were lever arch
files brim-full of original correspondence between farm neighbours about the
use or abuse of water rights; original receipts for buying diesoline and the
hiring of earthmoving equipment to clear portions of Kaalbooi of noxious weeds;
his submission to SARS to claim tax relief for clearing the farm of those weeds;
copies of criminal charges he laid at the Police of a break in at the homestead
that he, his late wife and their sons built.
He even kept the
original “confession” from a State Department for its illegal quarrying on
Kaalbooi for road making purposes.
We advertised in a
newspaper in the Lowveld and later on in national newspapers and even in the
Government Gazette calling on interested parties to come to the fore to present
their case for co-ownership. There was not a single query.
THE TITLE DEEDS SINCE
1936
Client’s
title deed was the starting point to trace all relevant previous transfers. I
could then link the previous transfers to one another from 1981 to 1936. It was
a major operation to obtain copies of these title deeds. Some were almost
illegible to read.
Farm
records in the old Transvaal were no longer kept in the Registrar of Deeds
Offices in Pretoria. These records were transferred to the Registrar of Deeds,
Mpumalanga in Nelspruit – this was in keeping with the creation of the 9
provinces since 1994. That is where I obtained the previous title deeds.
THE SUB-DIVISION ACT
This
Act is very important vis-Ã -vis
agricultural land and should be the first that you read when you are dealing
with transfers of agricultural land. Certain actions in respect of agricultural
land are either excluded [section 2] or prohibited [section 3].
Section
3 prohibits the subdivision of agricultural land subject to section 2. The
first three subsections of section 3 are crucially important in this regard and
it states:
“3 Prohibition of certain actions regarding agricultural
land
Subject to
the provisions of section 2 –
(a) agricultural land shall not be
subdivided.
(b) no undivided share in agricultural
land not already held by any person, shall vest in any person;
(c) no part of any undivided share in
agricultural land shall vest in any person, if such part is not already held by
any person;
(d) …
(e) …
(f)
…
(g) …”
Client’s
initial instructions pertaining to his bequest of Kaalbooi to his two sons in
equal shares were struck down by the prohibition contained in section 3 (a).
I
had to solve the prohibitions set out in section 3 (b) & (c).
It
is clear that “… (b) no
undivided share in agricultural land not already held by any person, shall vest
in any person;” Yet,
client is the proud owner of 50% undivided shares in Kaalbooi. The problem was how on earth did that happen?
I
kept reading and saw section 3 (c) applies because “… such part is … already held by …” my client since 1981.
Remember
section 3 is subject to the provisions of section 2. Then I studied section 2
which refers to “Actions
which are excluded from application of Act.” [sic]. This might give me
the clue why 50% were transferred to my client. Look at section 2:
“2
Actions which are excluded from application of Act
The
provisions of this Act shall not apply in respect of –
(a) …
(b) any subdivision of, or the passing
of an undivided share in, any land in accordance with a testamentary
disposition or intestate succession, if
the testator died before the commencement of this Act;
(c) …
(d) …”
[My
cursive].
Widow
Mrs B sold her 50% undivided shares in Kaalbooi to my client during July 1981. Client’s
title deed led me to the earlier transfer wherein Widow Mrs B obtained her 50%
undivided share. These shares were transferred to her out of her late husband’s
estate. The hunt is on for all previous transfers. It became clear from Widow
Mrs B’s title deed that she was married in community of property to her late
husband who passed away 26th day of June 1970. The Sub-Division Act
commenced 2 January 1971 – shall I say that he made it in the nick of time? The
transfer to Widow Mrs B was fine.
I
was able to reconcile the various transfers with the Sub-Division Act; my
client’s transfer was regular & lawful for the following reasons:
2. The transfer to his widow and subsequent to my client was regular & lawful.
3. All
the previous sub-divisional transfers were not affected by this Act at all.
THE NEXT QUERY:
PRESCRIPTION IN RESPECT OF PERIODS FROM 1981 TO 2014
I don’t intend to
restate what I have already set out in graphic detail above save to state there
was enough evidence to convince a court of law on a balance of probabilities
that he has possessed Kaalbooi “…
openly and as if he were the owner thereof for an uninterrupted period of
thirty years…”
I
submit that the relevant portion of section 1 of the 1969 Prescription Act is
applicable and it 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 …”
THE NEXT QUERY:
PRESCRIPTION IN RESPECT OF THE PERIOD PRIOR TO 1981
The relevant portion of section 1 of the 1969
Prescription Act 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… a
period which, together with any periods for which such thing was so possessed
by his predecessors in title, constitutes an uninterrupted period of thirty
years.” [My cursive].
Does
this mean that, for prescription purposes, I should/could take the period prior
to 1981 into account? Does it mean that the right title and interest in
prescriptive periods prior to 1981 were transferred to my client? I submit
these rights, if proven, were indeed transferred to client.
In light of the fact that the first sub-division took
place during 1936, it became necessary to also have regard to the provisions of
the 1943 Prescription Act.
Section 2 of the 1943 Prescription Act reads:
“(1) Acquisitive prescription is the
acquisition of ownership by the possession of another person's movable or
immovable property or the use of a servitude in respect of 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 or user shall ipso jure become the owner of
the property or the servitude as the case may be.”
On
this point we became unstuck because nobody came forward to claim co-ownership
of Kaalbooi. I submit it was unnecessary to seek other historical facts for the
periods prior to 1981. We could not get facts pertaining to prescriptive
periods prior to 1981 at all. I was satisfied that client’s case could be
proved on a balance of probabilities and it was on that basis that we launched
motion proceedings to claim transfer of the other 50% undivided shares in
Kaalbooi.
The
history of Kaalbooi and its people prior to 1981 are hidden in the mists of
Mpumalanga and in a couple of graves on the farm.
Since
1981 Kaalbooi’s history became very clear – thanks to my client’s meticulous
record keeping.
On
21 August 2014 the High Court of South Africa Gauteng Division, Pretoria
declared in case number 2703/2014 applicant [my client] as having acquired the
remaining half share in Kaalbooi and the court granted related relief as well.
