Ex parte Van der Horst: In re Estate Herold

• Jurisdiction: South Africa
• Citation: 1978 (1) SA 299 (T)

Ex parte Van der Horst: In re Estate Herold
1978 (1) SA 299 (T)

1978 (1) SA p299

Citation	1978 (1) SA 299 (T)
Court	Transvaal Provincial Division
Judge	Viljoen J, Eloff J and Van Reenen J
Heard	August 31, 1977
Judgment	August 31, 1977

Flynote : Sleutelwoorde B

Prescription — Acquisitive prescription — Lots in a township — Applicant must show continuity of occupation of all lots — Act 18 of 1943, sec. 2 — Only one application may be made in respect of all lots — Act 47 of 1937, C sec. 33; Act 35 of 1976, sec. 1.

Headnote : Kopnota

The appellant, the nominee of the executor testamentary in the estate of H, had applied in the Local Division for a rule nisi calling on all persons interested to show cause why an order should not be granted declaring that during the lifetime of the deceased he had acquired prescriptive title to certain lots. These lots were in a township established by the deceased. Several lots were sold and transferred but some were never fenced or used and were occupied solely by the deceased. D On these he had planted crops and grazed cattle - he had carried on those activities openly. The Court had refused to issue a rule, holding that it had to be shown that the deceased had had a separate and distinct cause of action in respect of each lot. In an appeal,

Held, that the learned Judge had laid down too stringent a test.

Held, further, that it was enough if the deceased was shown to have had E continuity of occupation - not absolute continuity.

Held, therefore, that a prima facie case had been made out under section 2 of the Prescription Act, 18 of 1943.

Held, further, regard being had to section 33 of the Deeds Registry Act, 47 of 1937, and section 1 of the Petition Proceedings Replacement Act, 35 of 1976, that it was competent for the appellant to make one application in respect of all the lots. Appeal accordingly allowed. F

Case Information

Appeal from a decision in the Witwatersrand Local Division (NICHOLAS, J.). The facts appear from the reasons for judgment.

C. Plewman, S.C. (with him Mrs. L. R. G. Serrurier), for the appellant.

Judgment

Eloff, J.:

The appellant, the nominee of the executor testamentary in the estate of the late James Herold ("the deceased"), applied in the Witwatersrand Local Division of the Supreme Court for the grant of a rule nisi calling on all persons interested to show cause why an order should not be granted declaring that during his lifetime the deceased acquired H prescriptive title to certain lots described in the notice of motion.

It appears from the founding and supporting affidavits that the deceased, who died on 11 October 1959, established five townships between the years 1905 to 1907 on two farms namely Roodepoort No. 302 I.Q. and Hartebeesfontein No. 312 I.Q. which lay to the South of Johannesburg. These townships consisted in the aggregate of 2 308 lots, and of those a total of 599 lots were sold and transferred during the years 1905 to 1912; 136 from 1913 to 1929; and 33 from 1930 to 1959. That left 1 540 unsold at the time of his death.

1978 (1) SA p300

Eloff J

Of the 735 lots which were sold prior to 1929, 199 were registered in the name of the Community Development Board, the South African Railways and Harbours Administration, and various churches; all of those fell outside A the purview of the...