[MEDIA SUMMARY] Community of Grootkraal v Kobot Business Trusts

The Community of Grootkraal claimed a public right to use a small portion of the farm Grootkraal, near the entrance to the Cango Caves outside Oudtshoorn, for church and related community purposes, including a school. The Grootkraal congregation, an outstation of the Grace International Church, worshipped on the property, which was also used by the Grootkraal UCC Primary School. The Community claimed it had used this portion from time immemorial, dating back to the middle of the 1800s, for religious purposes following missionary work by the London Missionary Society. The main building was erected by the Community in the last two decades of the nineteenth century. It had been adapted for school use in about 1930 or 1931 when the school was established, and had served both purposes ever since. The owner of the property sought the eviction of the school.

• Whether the Community had established a public right of use over the property based on immemorial user
• Whether a servitude by immemorial user had been established in favour of the Community
• Whether the owner could successfully evict the school and church from the property
• What presumptions apply when immemorial user is established and where the burden of proof lies

The appeal was upheld. The Court ordered the Registrar of Deeds to register a public servitude in favour of the Community of Grootkraal to use the property, as defined in the order, for the purposes of a Christian church and any related community activities, including the conduct of a school.

Where a community establishes immemorial user of property (use dating back to time immemorial or from a very early historical period), it is to be presumed that the right came into existence in a lawful manner. The burden of proof shifts to the owner of the property to show that the right came into existence in an unlawful manner. If the owner fails to discharge this burden, a public servitude may be registered in favour of the community for the purposes for which the property has been used.

The media summary does not contain sufficient detail to identify specific obiter dicta. As this is only a media summary and not the full judgment, any non-binding observations made by the Court regarding broader principles of property law, the historical context of missionary work and community rights, or commentary on the social importance of protecting long-standing community use of property for religious and educational purposes would need to be identified from the full judgment text.

This case is significant in South African property law as it confirms the continued recognition of rights established through immemorial user. It demonstrates the protection afforded to long-standing community use of property for religious and educational purposes, particularly where such use has historical roots dating back to missionary activities. The case also clarifies the burden of proof in cases of immemorial user, placing the onus on the property owner to disprove the lawful origin of such rights rather than requiring the claimant to prove their lawful establishment. This has important implications for communities that have historically used property for religious, educational and community purposes, especially in contexts arising from South Africa's colonial and missionary history.