Zulmira Fedelia Stoffberg NO & others v City of Cape Town

The City of Cape Town, as registered owner of Farm 77 (Baas Ariesfontein Outspan), a historic public outspan near Melkbosstrand, sought eviction of the appellants who occupied and farmed the land. The appellants, members and trustees of the Stoffberg family trust, resisted eviction on the basis that the fifth appellant had acquired ownership by acquisitive prescription under the Prescription Act 18 of 1943. The property had been a public outspan since at least 1832 and was transferred to the City’s predecessor in title in 1946 subject to its use as an outspan. The Stoffberg family owned and farmed adjoining land from 1895 and made use of the outspan over many decades for grazing, cutting firewood and limited cultivation. From at least 1969, the fifth appellant and his brother, and later the fifth appellant alone, entered into successive written lease agreements with the City or its predecessor for use of the property, paying rental until 2001. After expiry of the last lease, occupation continued without a renewed lease, prompting the City to institute eviction proceedings in 2007.

The appeal was dismissed with costs, including the costs of two counsel. The eviction order granted by the High Court in favour of the City of Cape Town stood.

The case clarifies the strict evidentiary requirements for acquisitive prescription under South African law, particularly in relation to land burdened by public servitudes such as public outspans. It confirms that while such land is not immune from prescription in principle, ordinary farming activities consistent with public use, and occupation under lease, will not amount to adverse possession with animus domini. The judgment underscores that recognition of another’s ownership through leasing is fatal to a claim of acquisitive prescription.