Gianchandi v Registrar of Deeds Pietermaritzburg and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Nicholson AJ
• Judgment Date: 14 March 2023
• Citation: 2023 JDR 0791 (KZD)
• Hearing Date: 03 March 2023
• Docket Number: D3519/2021
• Court: KwaZulu-Natal Local Division, Durban

Nicholson AJ:

[1]

The Applicant seeks declaratory relief in terms of s 1 of the Prescription Act 68 of 1969 ('the Act') in light of her being in occupation of immovable property described as Erf 107, Moseley Park, Ext 1 (Pietermaritzburg), Province of KwaZulu-Natal ('the property') for a period exceeding 30 years.

[2]

The Applicant seeks further ancillary relief in terms of s 33 of the Deeds Registries Act 47 of 1937 that the property be registered in her name.

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[3]

The First Respondent, has not participated in this matter at all, while the Third Respondent, while not opposing the relief sought, has filed an answering affidavit wherein they describe certain illegalities with regards to the property, that shall be dealt with hereinbelow.

[4]

The relief sought by Applicant is opposed by the Second Respondent, the registered owners of the property.

Background Facts:

[5]

The Applicant contends that on or about April 1990, her late husband and herself purchased a house 3 houses away from the property.

[6]

During this time, she noted the property was undeveloped and deserted. She and her family then made several improvements to the property and transformed it into a nursery and community park. The park is now open and accessible to members of the community.

[7]

In order to obtain electricity and water for the nursery, the Applicant states that they utilised the water and electricity from the neighbours for which they reimbursed the neighbours.

[8]

Further, the running costs of the park is approximately R16 000 per month and the improvements of the property to date is approximately R950 000. The revenue of the park and nursery is used to maintain the park.

[9]

The Applicant states further that since there had been in occupation of the property for a period of 31 years, (at the time of bringing this application), she thought it would be prudent to regularise the ownership of the property into her name, Accordingly, she consulted with an attorney.

[10]

The Applicant states further that at all times over the past 31 years, she exercised her possession openly, and she possessed the property with the intention to possess and control it, as owner.

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[11]

The Applicant further contends that her attorney of record established the registered owners of the property as Moseley Park Estates (Pty) Ltd ("Moseley Park Estates"), who had been deregistered between 16 July 2010 and 15 September 2020, and have not approached the Applicant in any way regarding their occupation and use of the property.

[12]

Ms Sandra Pillay, on behalf of Second Respondent, deposed to the answering affidavit in opposition to the relief sought by the Applicant, and states that she and her husband purchased Moseley Park Estates in or about 1993 and became directors on 9 July 1993, and Second Respondent currently owns 39 plots of land in the Moseley Park area which includes the property in question. However, she does not state exactly when Second Respondent became owner of the property.

[13]

The reason they purchased Moseley Park Estates was to develop the plots of land and sell the developments. Further, most of the 39 plots are undeveloped and covered in dense vegetation and are without services such as water and electricity. Ms Pillay states further that in consequence of financial constraints, Moseley Park Estates was deregistered in 2010 and reregistered in 2020.

[14]

Ms Pillay confirms that neither she nor her husband approached the Applicant because the nursery is not visible when they drive past the property and only recently became aware of the nursery on the property. They initially assumed that the nursery was situated on a neighbouring property.

[15]

I pause to mention here that Ms Pillay does not provide any details of when and why the property was visited save to say that the nursery is not visible from the road.

[16]

Ms Pillay states that they deny the Applicant has been on the property for 31 years because: the Applicant has failed to put up any proof in her affidavit that evidences possession of this period, and the Municipality had provided two aerial photographs dated 2019 and 2020 which shows that a

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large amount of vegetation had only been cleared and a tarred driveway built in 2020. Accordingly, occupation of the property only started in 2020.

[17]

Ms Pillay further states that the applicant did not possess and control the property as owner because, unlike what one would expect of an owner, the Applicant:

(a)

connected both illegal electricity and a water supply to the property;

(b)

did not apply for a legal water and lights connection to the property;

(c)

used the property illegally because it was zoned for public open space; and

(d)

did not make an application to the Municipality to use the property as a nursery.

[18]

In the Applicant's replying affidavit, it emerged as common cause that the water and electricity was indeed connected illegally; the Applicant did not apply for the appropriate zoning of the property; and while vegetation had been cleared out between 2019 and 2020, occupation of the property was in fact 31 years prior.

[19]

It is instructive to mention at this point that the eThekwini Municipality filed an answering affidavit wherein they confirmed that there had been no application for the use of the property, rezoning of the property, and the water and electricity connection was indeed illegal.

Legal requirements for acquisitive prescription:

[20]

Section 1 of the Act reads:

'Acquisition of ownership by prescription – Subject to the provisions of this Chapter and of Chapter IV, a person shall by prescription become the owner of a thing which

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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 thirty...