Seale v Minister of Public Works

• Jurisdiction: South Africa
• Judge: N Davis J
• Judgment Date: 10 May 2019
• Citation: 2019 JDR 1041 (GP)
• Docket Number: 62272/2017
• Court: Gauteng Division, Pretoria

Davis J:

[1]

This is the culmination, by way of an opposed motion, of a saga spanning more than a century. At its center, are the question of interpretation of an agreement of sale and the question whether a right of access for purposes of fishing and boating in and on the Hartebeespoort dam was meant to be a personal right of one Johan Schoeman (son of a Boer War General and previous owner of the land) or a real right attached to the land itself. Additionally the issues of acquisitive prescription of a servitude and the loss through non-use also feature.

[2]

The parties:

The First Applicant is a certain Mr Seale. He is the owner of Erf 463, which erf is situated in the township of Schoemansville and which is immediately adjacent to the foreshore of the Hartbeespoort Dam. Mr Seale also owns another erf in Schoemansville and a further three erven in the nearby township of Meerhof. The townships are also situated on the banks of the Hartbeespoort dam.

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2.2

The Second Applicant is a company of which Mr Seale is a director and which is also the owner of an erf in Schoemansville.

2.3

The Third Applicant is similarly a company of which Mr Seale is a director and which owns a consolidated erf in Schoemansville.

2.4

The fourth Applicant is the Schoemansville Oewerklub a voluntary unincorporated association of persons established in 1982. 60% of its membership comprises of owners of erven in Schoemansville.

2.5

The First, Second and Third Respondents are the Minister of Public Works, the Minister of Water and Sanitation and the Premier of the North West Province (being the Province within which the Hartbeespoort Dam is situated), all in their official capacities.

2.6

The Fourth Respondent is the Transvaal Yacht Club (the "TYC"), a voluntary unincorporated association which has been established on 23 February 1923. It is the owner of consolidated erf 1113, Schoemansville (previously erven 117, 118 and 119 Schoemansville) which consolidated erf is situated immediately adjacent to the foreshore of the Hartbeespoort Dam and to erf 463 belonging to Mr Seale.

2.7

The Fifth Respondent is the Registrar of Deeds.

[3]

As with any sequence of events spanning such a long time, the chronology of events contextualizes the issue. It can be culled in the following fashion from the parties' joint practice note and with reference to an extensive volume of documents produced:

3.1

1899 - 1902 Anglo Boer War

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3.2

1902 General Schoeman passed away shortly after the Anglo Boer War

3.3

1911 General Schoeman's land was inherited by his seven heirs, one of whom was his son, Johan Schoeman ("Schoeman").

3.4

1914 The Union Government resolved to build the Hartbeespoort Reservoir in terms of the then Irrigation Act. The Reservoir later became what is now known as the Hartbeespoort Dam. Portions of the land in question are, probably as a result of the use of Dutch in some of the old title deeds, interchangeably referred to as "Hartebeestpoort", "Hartbeestpoort" or "Hartbeespoort". For sake of convenience, I shall use the latter appellation, being the current name of the dam in question.

3.5

1917 Schoeman acquired an additional portion of the South Eastern Portion of the Farm Hartbeespoort in his own name.

3.6

25 January 1918 The Union Government purchased portions of the land that formed part of the Northern Portion and the South Eastern Portion of the Farm Hartbeespoort. These were those inherited from General Schoeman and that acquired by Schoeman himself. The purchase from Schoeman and his family members was in terms of a Memorandum of Agreement in which Schoeman represented himself and his family members (the "1918 Agreement") referred to more fully hereinlater.

3.7

November 1918 The purchased portions of the purchased land were transferred to the Union Government in terms of the 1918 Agreement.

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3.8

February 1922 Schoeman insists on the registration of a servitude as contained in the 1918 Agreement.

3.9

July 1922 The township of Schoemansville was originally laid out by Schoeman. Erf 463 thereof was identified by him as a recreational ground (in line with its location and topography).

3.10

August 1922 Attorney and notary Mr Meintjies (on behalf of Schoeman) forwarded a draft notarial Agreement for the Minister's approval.

3.11

2 September 1922 Director of Irrigation confirmed to the Secretary for Lands that the terms embodied in the draft Notarial Agreement are in order.

3.12

27 September 1922 The Union Government and Schoeman entered into Notarial Agreement (the "1922 Agreement").

3.13

3 October 1922 The 1922 Agreement was registered m the "Register of Miscellaneous Deeds".

3.14

19 November 1922 Schoeman advertised Schoemansville erven with right of access to be sold by public action on 14 December 1922.

3.15

21 November 1922 Schoeman had established his pleasure boating enterprise from the shores directly adjoining Erf 463 for boating on the dam.

3.16

21 November 1922 Schoeman threatened legal action if the State does not withdraw a threatened general prohibition on boating and

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fishing, ruining his returns on the pending sales of erven in Schemansville.

3.17

24 November 1922 The Union Government published a general notice (Government Notice 047) prohibiting boating on the Hartbeespoort Dam.

3.18

25 November 1922 Schoeman reasserted his rights - a letter appeared in the local newspaper confirming that "boating as normal" shall take place, despite Government Notice 047.

3.19

27 November 1922 Meintjes approached the Union Government regarding pending urgent relief and damages claim with regards to the general prohibition.

3.20

29 November 1922 Meintjes is informed in writing that the Union Government has acceded to his claims regarding Schoeman's rights.

3.21

5 December 1922 Secretary for Justice addressed a letter to the Director of Irrigation in which he confirmed that the State Law Advisors had advised that the matter has been dealt with in consultation with Mr Herdman, the Assistant Director of Irrigation, and the stage that has now been reached that the general prohibition has been withdrawn, the restriction being confined to a prescribed danger area.

3.22

1923 The township of Schoemansville was formally established by Schoeman on portion M (as it was known at the time and which previously formed part of the remainder of the Northern Portion of

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the farm Hartbeespoort). A certain Clause 13 was inserted as a condition to the establishment of the township, which stated that "all registered erf-holders shall be entitled, in common with the applicant, to the right of access to the dam near the south-eastern entrance of Hartbeespoort on the eastern bank of the river for the purpose of boating on the said reservoir and fishing therein, subject to the conditions of Notarial Agreement dated 27th September, 1922". (Subsequently Schoeman established the Meerhof township on the South-Eastern shore of the dam with similar conditions contained in its establishment).

3.23

8 January 1925 The Secretary of Lands confirmed the terms of a demarcation line with regard to access area k (a) including the consent required from Schoeman to afford the TYC use of the foreshore directly adjoining Erven 117 and 118, lastmentioned which Schoeman were donating to the TYC.

3.24

14 July 1925 The TYC received transfer of erven 117 and 118 by way of donation form Schoeman.

3.25

29 July 1925 Meintjes is informed by the Secretary of the Township Board of certain arrangements regarding "Hendrick Schoeman" Township including a landing place on the dam to be near the "public gardens" (later recreational ground).

3.26

11 September 1925 The Governor-General of the Union Government approved grants in terms of the Crown Land Disposal ordinance, 1903 (Transvaal).

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3.27

10 October 1925 The Executive Council of the Union Government approved the grants and reservations per Cabinet Minute 3152.

3.28

7 April 1926 Crown Grant 67/1926 was registered, described (at the time) as Portion No 1 of portion L of the Northern Portion of the Freehold farm Hartbeespoort (portion 43). In terms of this grant the right to the free use of the foreshore immediately in front of it and between it, and the Hartbeespoort Dam, was granted to Schoeman and his successors in title together with ownership of portion 43.

3.29

10 April 1925 The Surveyor General sent a letter to Secretary of Lands confirming that the Grants in terms of the Cabinet Minute are over and above those rights acquired by Schoeman in favour of, inter alia, Schoemansville erven in terms of Clause k of the 1918 Memorandum of Agreement and that because the foreshore in front of Erf 463 has been utilized as a landing stage Schoeman should be made to restrict k (a) to that area.

3.30

2 June 1926 The Secretary of Lands responded to the Surveyor General's letter of 10 April 1926 stating that the purpose of Minute 3152 (demarcating k (a) in a certain manner with the consent of Schoeman and affording ownership of part of the area and exclusive free use of that area's foreshore) was to place the matter on a "satisfactory basis" and that provision was made in the terms of the 1922 Agreement for the proper registration of the retained rights (clause k (a), (b) and (c)) as set out in the Agreement "at a later stage".

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3.31

6 August 1930 Department of Lands confirmed its commitment to uphold its agreement with Schoeman and cancelled a lease for a water plane landing strip near the Swartspruit Valley.

3.32

1939 Schoeman sold his Hotel business adjoining erf 463, which includes Portion 43, including the ferrying rights...