Burglar Alarm & Remote Control Services CC v Brits

The plaintiff (Burglar Alarm & Remote Control Services CC) and the defendant (Werner Brits) own adjoining properties (erven 4[...]6 and 4[...]0 Malagas) near Malgas, Western Cape. A barbed-wire fence, which had existed since at least January 1989, served as the visible physical boundary between the properties. However, a land survey conducted on 22 March 2019 revealed that the fence did not follow the cadastral boundary. Instead, the fence encroached onto the defendant's property (erf 4[...]0) for its entire length, cutting a long, triangular strip of land from it. The encroachment started imperceptibly at the rear beacon (a railway sleeper) and gradually deviated until, approximately 150 metres away at the Malgas/Infanta road, it was about 2.5 metres into the defendant's property. The plaintiff had purchased the property in 1992 and had, along with its predecessors-in-title (including Mrs Martha Nabal who owned it from 1989), treated the fence as the boundary. The plaintiff made improvements on the disputed strip, including planting trees, erecting a stone entrance wall (partly on the defendant's side of the cadastral boundary), and laying service cables and pipes. The dispute arose when the defendant purchased his property in December 2018 and the survey of March 2019 revealed the discrepancy. The plaintiff claimed ownership of the strip by acquisitive prescription. The defendant denied this and counterclaimed for removal of the encroachment, alleging the fence had been moved in about 2010.

• Whether the plaintiff acquired ownership of the triangular strip of land by means of acquisitive prescription in terms of section 1 of the Prescription Act 68 of 1969.
• Whether the plaintiff and its predecessors-in-title possessed the disputed land openly and as if they were the owners thereof for an uninterrupted period of 30 years.
• Whether the defendant's counterclaim for removal of the encroachment could succeed in light of the plaintiff's prescriptive claim.
• Whether the defendant's allegations of concealment of beacons or movement of the fence affected the plaintiff's claim of acquisitive prescription.

1. The plaintiff is declared to be the owner, by acquisitive prescription, of the land between the cadastral boundary between erven 4[...]0 and 4[...]1 Malagas and the 'existing fence' as shown on the contour and detail plan, drawing number E420M_tp, dated April 2019 / May 2022, by Bekker and Houterman Land Surveyors. 2. The defendant's claim in reconvention is dismissed. 3. The defendant shall pay the plaintiff's costs in relation to the plaintiff's claim and the defendant's claim in reconvention, which costs shall include the qualifying fees of Mr Pieter Houterman, land surveyor.

Where a fence has been in existence and treated as the boundary between two properties for an uninterrupted period of 30 years, and the possessor has occupied the land up to the fence openly and as if owner thereof, the possessor acquires ownership of any land between the fence and the true cadastral boundary by acquisitive prescription in terms of section 1 of the Prescription Act 68 of 1969. The erection and maintenance of a boundary fence is clear objective evidence of the belief of a person regarding his or her rights to the land enclosed, and incorporation of the disputed strip into the possessor's property by means of a fence, coupled with improvements and use, establishes possession as owner. The true owner's lack of knowledge of the encroachment is irrelevant and does not constitute a defence to a claim of acquisitive prescription.

The court noted that, even if hardship were a consideration (which it is not in prescription cases), the order sought was not unfair to the defendant. The court also remarked that it did not regard section 25 of the Constitution (the property clause) as being helpful to the defendant despite his counsel's invocation of it, given the particular circumstances. The court further observed that the defendant did not call any previous owners of erf 4[...]0 and that their evidence would presumably not have helped his case. Regarding adverse inferences, the court noted that such an inference does not operate to destroy a case otherwise proved, and it was unnecessary to rely on an adverse inference against either party.

This case reinforces and applies the settled principles of acquisitive prescription in South African property law, specifically in the context of boundary disputes where a fence has long been treated as the property boundary. It confirms that a fence is prima facie evidence of possession as owner, that incorporation of a disputed strip into the possessor's property is sufficient for possession of the whole, and that the true owner's ignorance of the encroachment does not defeat a prescriptive claim. The judgment provides a thorough application of the requirements under the Prescription Act 68 of 1969 and reaffirms key precedents including Pienaar v Rabie (1983) on the irrelevance of the true owner's knowledge, and Bisschop v Stafford (1974) on inferring the state of mind of predecessors-in-title. It also confirms that section 25 of the Constitution does not generally assist a true owner resisting a lawful acquisitive prescription claim.