IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No.: 14722/10
In the matter between:
CHARLES BERNARD SUMMERS					First Applicant
KATRINA SUMMERS							Second Applicant
and
JOHNIE BOY KIEWITZ						First Respondent
JOHANNA KIEWITZ						         Second Respondent

JUDGMENT DELIVERED: THURSDAY 01 SEPTEMBER 2011 
SALDANHA, J
[1.] This is an application in terms of the Prevention of Illegal Eviction From And Unlawful Occupation of Land Act 19 of 1998 (PIE) for the eviction of the respondents from the immovable property, Erf 74, Hawston. Overstrand Municipality, Western Cape, which is situated at, and commonly known as, 19 Church Street, Hawston. Western Cape.

[2.] The respondents opposed the relief principally on the ground that they had become the owners of the property by virtue of acquisitive prescription.

The issues in dispute.
[3.] The respondents claim that the applicant had failed to meet three of the requirements of PIE namely;

(iii)        that they had failed to prove that it would be just and equitable to evict the respondents.

[4.) It was not in dispute that the applicants had complied with the formal requirements of section 4(2) as read together with section 4(5) of the PIE Act.

[5] The applicants contended in response to the claim of acquisitive prescription that on the respondents' own version they had not possessed the property openly and for an uninterrupted period of thirty years and with the necessary intention of acquiring the property within the prescripts of the requirements of acquisitive prescription.

The applicants' version.
[7.) (i) The applicants, who were originally from Hawston, obtained the property in 1978 by way of a donation from the first applicant's late father. On the 27 April 1981 the property was registered in the name of the first applicant as evidenced by the Title Deed to the property.

The respondents' version
[10.] The first respondent is a 69 year old pensioner, while the second respondent is 60 years old. They claim their only source of income is the first respondent's old age pension.

[11 ] The second respondent deposed to the opposing affidavit on their behalf and claimed that the first applicant was well known to her as they had grown up together in Hawston. Her parents and the applicants' parents were also old friends.

[12.] She claimed that shortly after the death of the first applicant's mother and while the first applicant's father had still lived in the premises together with another family member, the first applicant approached them and asked them if they were interested in buying the property. The first applicant had explained that his father was going to relocate to Cape Town and live with him and that he did not foresee himself living in the house. He proposed a purchase price of R6000,00.

[13.] The second respondent claimed that at that stage they were permanently resident in Hawston and had no intention of leaving the area. Their second child had already been born and they needed a place to live. They therefore accepted the first applicant's offer to purchase the property for the amount of R6000,00.

[14.] The second respondent claimed that she has since been advised by her attorney that the oral agreement of purchase in respect of the land was not valid. She claimed though that she and the first respondent had no knowledge of legal matters and that when they entered into the oral agreement with the first applicant in 1978 they believed that the agreement was valid and enforceable. She claimed that the first applicant was very good to her and they had their full trust in him and believed that he would keep to his word.

[15.] She could not recall the exact date on which they had taken possession but recalled that they had already occupied the property by1978, being the year before the first respondent obtained employment in Secunda. She further claimed that they were under financial strain and because work had been scarce the first respondent was forced to obtain employment in Secunda. She did not join him in Secunda but remained in the house together with their two children. She claimed that one of the most important reasons why the first respondent took the work in Secunda was to enable them to pay off the purchase price to the first applicant.

[16.] At the end of 1979 when the first respondent obtained his first annual bonus he was in a position to begin with the payment of the purchase price and by the end of 1995 had already paid R5000.00 towards the purchase price of R6000.00. All the payments were made in cash to the first applicant and were made in various instalments of different amounts.

[17.] She claimed that upon their occupation they proceeded to pay the monthly rates and municipal charges in respect of the property although the accounts were in the name of the first applicant. They attached to their papers a rates receipt for the 20* April 1978 which had been issued by the then Caledon Divisional Council.

Ek die bogenoemde wil hiermee bevestig dat ek in besit is van R5000,00 as voorskot op betaling vir verkoop van huis in Hawston. Die oordrag van papiere sal geskiet wanneer ons die prokureur gaan sien."

[19.] The respondents claimed that during 1986 they had paid the outstanding amount of R1000,00 in settlement of the full purchase price. After they had paid the purchase price they attempted at various occasions to contact the first applicant to enable the transfer of the property into their names. They however got the impression that the first applicant had purposefully avoided them and on two occasions when they had specifically arranged to meet with him he failed to keep the appointments. In one instance they went to his house without an appointment and were told by a neighbour that he had jumped over a fence in an +attempt at avoiding them.

[20.] The second respondent claimed that from 1978 to 1989 she and the children had lived on the premises together with other family members. The first respondent came home during vacations from Secunda. In 1990 she obtained a post with the South African Bureau of Standards in Pretoria where she lived together with the first respondent who had then worked for a construction company in Johannesburg. Their oldest daughter who had completed matric remained in the house in Hawston. Their younger son had accompanied them to Pretoria. Her sister, her sister's husband, and their children lived in the property while her daughter enrolled as a student at the University of the Western Cape and regularly spent weekends and vacations at the property. In 1992 her sister and her sister's husband moved into their own home and second respondent's brother and his partner at the respondents' request lived in the house. At the end of 1992 her daughter had completed her studies and returned to Hawston where she lived in the house. The second respondent claimed that while she and her husband had lived in Pretoria from 1990 to 2001 they retained possession of the house and that their furniture and possessions remained in the house. They also returned to the house over various weekends and after her husband's retirement in December 2001 they returned to the property permanently.

[21.) During the Easter weekend of 2005 they claimed that the first applicant out of the blue visited them. This was the first time in approximately eighteen years that they had seen him and the first respondent raised with him the question of the registration of the property into their name. The first applicant undertook to discuss it further with them but never did so. On Good Friday in 2008 he again visited them where the question was again raised with him by the respondents. He again undertook to discuss it with them but never did so.

[25.] On the 15 June 2009 the respondents received a letter from attorneys Marais Muller Yekiso on behalf of the applicants in which the following was stated;

[27.] The respondents claim that the applicants were at all times aware of their claim of acquisitive prescription. A letter was also addressed by the respondents' attorneys to that of the applicants about persons who, on the apparent instructions of an estate agent, had visited the property in breach of the respondents' privacy. The respondents once again claimed that they were the owners of the property by virtue of acquisitive prescription and sought an undertaking that the applicants would desist in their conduct of attempting to market and sell their property.

[28] In the letter the respondents placed on record that they had never paid any rental for the property since their occupation in 1978 and that they had immediately took responsibility for the payment of all municipal charges and rates and had immediately begun with the improvements on the property. In this regard they procured a sewerage toilet in the house together with a bathroom, built internal walls, improved the kitchen, erected a vibacrete wall, had cupboards built and tiled the floors.

[29.] The respondents claimed they had uninterrupted possession of the property with the clear intention as the owners thereof since 1978.

Applicants' reply

[31.] The version of the applicants that emerged from the replying affidavit may be summarized as follows:

[32.] Although the first applicant disputed that he received the final payment of R1000.00 during 1986 he was not able to deny outright that he in fact received the amount.

[33.] The first applicant further denied that the respondents had attempted to make any contact with him with regard to the transfer of the property into their names and specifically denied that he had not kept any appointments or that he evaded meeting with them by jumping over a garden wall.

[34.] The applicants claimed that it was clear from the respondents' own version that until they finished paying the purchase price they had possessed the premises on the basis of the oral agreement of sale and that they acknowledged that they would and could not become the owners of the premises pending payment in full of the purchase price and taking transfer of the property.
[35.] The applicants further claimed that on the respondents' version, neither of them resided in the property between 1990 to December 2001.

[37.] With regard to the amount of R6000.00 referred to in his complaint to the Housing Tribunal he claimed that it was an error arising from his confusion about the total amount actually received in respect of the agreed purchase price.

[38.] The first applicant further disputed that the receipt produced by the respondents from the Caledon Divisional Council was proof of payment and claimed that it was merely an account. He however conceded that the respondents had assumed liability for the payments of the rates and services to the municipality upon their assuming occupation of the premises. The first applicant claimed that such payments could not be regarded as anything else but the payment of rental and subsequently as occupational rental pending transfer of the property to the respondents.
[39.] The applicants further admitted that the respondents had made the improvements to the property. They claimed though that as the respondents had not provided any dates as to when the renovations were made and the costs thereof any possible enrichment claim that the respondents may have against them had long since prescribed.

[42.] The first applicant tendered to repay the amount of R5000.00 to the respondents. In conclusion he reiterated that he was the registered owner of the premises and that any claim by the respondents that they had acquired the premises by acquisitive prescription failed on the respondents' own version. Further, he claimed that the respondents had failed to place any, let alone sufficient facts and circumstances before the court that it would not be just and equitable to grant an order of ejectment.

Factual disputes
[43.] Mr. Le Roux, who appeared on behalf of the respondents, submitted that there were clearly a number of factual disputes before the court. The approach to be adopted by the court when faced with such disputes in motion proceedings are set out in the oft quoted case of Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) at 235E - G:

justify such an order.	Where it is clear that facts, though not formally
admitted, cannot be denied, they must be regarded as admitted."

[44.] This formulation of the general law and particularly the second part thereof was both clarified and qualified by Corbett J in the decision of Plascon Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) wherein the
following principles were set out at 634I-635B
"In certain instances the denial by respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact (see in this regard Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1163 - 5; Da Mata v Otto NO 1972 (3) SA 858(A) at 882D - H). If in such a case the respondent has not availed himself of his right to apply for the deponents concerned to be called for cross-examination under Rule 6 (5) (g) of the Uniform Rules of Court (cf Petersen v Cuthbert & Co Ltd 1945 AD 420 at 428; Room Hire case supra at 1164) and the Court is satisfied as to the inherent credibility of the applicant's factual averment, it may proceed on the basis of the correctness thereof and include this fact among those upon which it determines whether the applicant is entitled to the final relief which he seeks (see eg Rikhoto v East Rand Administration Board and Another 1983 (4) SA 278 (W) at 2B3E - H)."

[45.] These principles are applied in motion proceedings in general, see National Union of Metal Workers of SA and others v Fry's Metals (Pty) Ltd 2005 (5) SA 433 (SCA) at 456A-B and also the discussion by Davis J of the Plascon Evans rule in the matter of Ripoll-Dausa v Middleton NO and others 2005 (3) SA 141 (C).
Notwithstanding the apparent disputes of fact neither of the parties sought to apply for the matter to be referred to oral evidence. The parties were equally of the view that the court should determine the application on the papers before it.

"He who asserts, proves and not he who denies, since a denial of a fact cannot naturally be proved provided that it is a fact that is denied and that the denial is absolute." This rule is likewise to be found in a number of places in the Corpus Juris I again give only one version: " Ei incumbit probatio qui dicit, non qui negat " (D. 22.3.2). The onus is on the person who alleges something and not on his opponent who merely denies it'

The court made three further observations at 952-953 such as;

[47.] Mr Van Der Merwe also referred to the decision of Du Toit And Others v Furstenberg And Others 1957 (1) SA 501 (O) with regard to the defence of prescription wherein De Villiers J at page 503 para e-f, stated;
"Dealing with the defence of prescription it is dear from the evidence that the disputed land is presently registered in the name ofAnsie du Toil That fact affords prima facie proof that she is the legal owner and the onus is consequently upon second defendant to prove that she acquired the disputed land by prescription and is accordingly the true owner This onus she is entitled to discharge on a balance of probabilities but the Court will of necessity carefully scrutinise the evidence tendered before it will deprive Ansie du Toit of property registered in her name. (cf. Welgemoed v Coetzer and Another, 1946T.P.D. 701 at p. 720.)"

The Claim of Acquisitive Prescription
[49.) The applicants submitted that the respondents on their own version did not possess the property openly as if they were the owners thereof for an uninterrupted period of thirty years.

[50.] Acquisitive prescription is governed in the main by the Prescription Act 68 of 1969, the old Prescription Act 18 of 1943 and where applicable the rules of the common law consistent therewith Section 1 of Act 68 of 1969 provides as follows:

[51.] Section 2(1) of the old Prescription Act 18 of 1943 defines acquisitive prescription as;

(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."

[52.] The provisions of the acts in respect of acquisitive prescription are very similar and our courts have held that the basis of acquisitive prescription, despite differences with regard to definition and concept, is the same. Watermeyer CJ, in Malan v Nabygelegen Estates 1946 AD 562, authoritatively held as follows (at 574);

[53] Saner further contends that the necessary requisites for acquisition of ownership by acquisitive prescription in the two Acts is not and does not purport to be exhaustive.

"Even if it be conceded that no special onus is placed by law upon the claimant in an acquisitive prescription suit, the authorities lay down that the evidence of adverse user claimed to be such as to deprive a man of portion of his property, must be clear and is closely scrutinized."

[59.] Counsel for the applicants argued that the court should draw an inference from what the respondents state in their affidavit that they had not believed that they were the owners of the property and only sought the transfer after they had paid the purchase price. Such an inference, however, would fly in the face of the actual contentions by the respondents, namely, that they had at all times regarded themselves as the owners openly from the moment of them taking occupation of the property, that they had assumed responsibility for the rates and municipal charges, and that they had attended to extensive improvements, and in circumstances where they were not required to pay any occupational interest or rental to the applicants.

''[32] The word 'expropriate' is generally used in our law to describe the process whereby a public authority takes property (usually immovable) for a public purpose and usually against payment of compensation"
A dismissal of the applicants claim for eviction does certainly does not amount to an act of expropriation by the court. Neither does this court make a finding in favour of the respondents on the question of acquisitive prescription.

[64.] In the circumstances I am of the view that the applicants' have failed to meet all the requirements of the PIE Act, in particular in the light of the respondents' claim of acquisitive prescription with the attendant disputes of fact in respect thereof. The applicants have failed to satisfy the requirement of ownership in that where their registered title has been challenged with a claim of acquisitive prescription. They have further failed to satisfy the court that the respondents were in unlawful occupation of the property.

[65.] Mr. Le Roux submitted that the court should display its displeasure with regard to the first applicant's conflicting versions and his failure to place relevant information which was in his knowledge in his founding affidavit and his conflicting versions with an award of costs on an attorney client scale in favour of the respondents.

[66.] In the circumstances of the matter, having considered the nature of the claim. I am not persuaded that it is appropriate to mulct the applicants with a punitive order of costs.

The following order is made:

It is ordered that the application is dismissed with costs.