Union Government (Minister of Lands) v Estate Whittaker

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA, CG Maasdorp JA, De Villiers AJA and Juta AJA
• Judgment Date: 25 May 1916
• Citation: 1916 AD 194
• Hearing Date: 16 February 1916
• Court: Appellate Division

Innes, C.J.:

The issue here lies in a nutshell. The land in dispute formed portion originally of the farm Sea View in the district of Durban; but for a time considerably longer than the period of prescription it has been occupied and used by the plaintiff estate and its predecessors in title. During the greater part of that time the dominium of Sea View was vested in private owners; but in 1899 the property was acquired by the Government, and the question is whether that fact is or is not fatal to the plaintiff's claim. In other words, whether prescription runs against the Crown in respect of land freely alienable. The Natal Provincial Division answered that question in the affirmative; and it has in the past been repeatedly so answered by South, African Courts. But the correctness of these decisions is now challenged on behalf of the Government, and on two grounds. It is said,

(1) That prescription did not under Roman-Dutch law run, against the State, even in respect of alienable property, and

(2) that if it did, the doctrine forms no part of the law of Natal, as being an unauthorized abridgment of the prerogative of the Crown.

In view of the current of legal precedent these propositions are somewhat startling; but they were argued with ability and research, and it becomes necessary carefully to consider them. It was pointed out by DE VILLIERS, C.J., in Latsky's case (1877, Buch. 86) that according to Voet (44, 3, 11) prescription ran against the Crown with regard to rights which could be alienated, but not as to others; and he added: "this seems to be the rule of our law." That pronouncement sufficed, without further elaboration, to settle the question. The principle thus laid down was thereafter repeatedly affirmed by the Cape Supreme Court, and it was adopted and approved in Natal and the Transvaal. The leading cases on

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the point are referred to in the very clear and interesting reasons of the learned Judge President, and it is unnecessary to recapitulate them.

It is now suggested that the subsequent decisions have simply adopted without investigating the rule laid down in Latsky's case; and that the passage in Voet there relied upon is based upon a reference to, Lambertus Goris which hardly justifies it. No doubt Latsky's case is the foundation upon which the later South African decisions ultimately rest; and no doubt the law was laid down on that occasion without any very elaborate examination of the authorities. But it has been so generally accepted, and so widely acted upon, that the Court would require very clear proof of error before venturing to disturb it. And so far from that being the case, such research as I have been able to make satisfies me of the soundness of the principle enunciated by DE VILLIERS, C.J., nearly 40 years ago, and followed by the Courts of this country ever since. The general rule that prescription did not run against the Crown (dat tegens den Heere geene prescriptie valt), was certainly recognized by the law of Holland, but it was subject to substantial exceptions, regarding the extent of which the authorities were by no means unanimous. Rights which from their nature involved a recognition of sovereignty (quae debentur principi ratione subjectionis), such as tribute, clearly came within the operation of the maxim and were not prescribable. And the same may be said of the inalienable State domains. But with regard to some other rights of property belonging to the Fiscus, the position was different; they were not covered by the rule. Voet (44, 3, 11) suggested that the true distinction lay in the power of the Crown to alienate. State property which was alienable, he thought should be regarded as subject to prescription; other State property not. He referred in this connection to Lambertus Goris (Advers. Juris, 3, 9, 43, et seq.), where the whole matter was fully discussed. The rights and assets of the Sovereign were by Goris divided into five categories, and the operation of the doctrine of prescription upon each class was carefully considered. There is no need to summarize his remarks under each head. For present purposes it is sufficient to say that he drew an important distinction between property which had been formally incorporated within the State domains, and property which, though it had accrued to the Sovereign, had not

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been so incorporated. With regard to the former class, he considered that according to local practice (differing in that respect from the Civil law), it was not subject to prescription; but rights relating to the latter class became prescribed he thought, in a third of a century. An interesting reference to this process of incorporation and its consequences will be found in Sande (de Prohib. Alien, 6, 2, ss. 6-9). The point to be specially noted is that, speaking generally, property once incorporated in the State domains became inalienable. Sande, it is true, mentions certain special cases in which, under Frisian law, res dominicales, might be parted with by the Sovereign for public purposes. But these were mere exceptions to the stringency of the general rule which prevailed in the Netherlands. Legislation proceeded along the same lines as the ordinary law, as will be seen on reference to a resolution of the States of Holland and West Friesland, dated 15th September, 1620, (Vol. 3, Groot Placaat Boek, p. 734), whereby the alienation of any portion not only of the public domains, but of certain other State assets was forbidden without the express sanction of a special resolution in each instance. Voet, therefore, was fully justified in connecting the fact that prescription did operate in respect of a certain class of Crown property, with the circumstance that such property, not having become technically portion of the State domains was alienable by the Sovereign. As pointed out by Matthaeus (Paroemia 9, par. 25), there can be no prescription where there is no possibility of alienation, but on the other hand there is no fundamental principle either of the Civil or of the Roman-Dutch law which excludes the operation of prescription in respect of Crown property which is alienable. Nor is there any reason why a position thus approved in the 17th century should not be recognized at the present time. The tendency now is for the State to engage to, an ever-increasing extent in commercial and business enterprise; and it is fitting that alienable assets which may be and are continually used in that way should be subject to the operation of the doctrine of prescription like private property. The first branch of the defendant's contention, therefore, falls away, and it remains to examine the second.

It will be convenient to state the relevant facts: The territory of Natal became portion of the British Empire in 1843, and was in the first instance annexed to the Cape Colony. It was at that

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time inhabited as regards white population by a European community, whose affairs were regulated in accordance with the principles of the Roman-Dutch law. It was stipulated by the Letters of Annexation that no law, custom or usage in force at the Cape should ipso facto be extended to the district of Natal. But power was reserved to the Legislature of the Cape to make and establish all such laws and ordinances as might be deemed meet for the peace, order and good government of Natal. Thereafter, in...