Zulmira Fedelia Stoffberg NO & others v The City of Cape Town

The City of Cape Town was the registered owner of Farm 77 (Baas Ariesfontein Outspan), a 425.9081 hectare farm designated as a public outspan since at least 1832. The property was occupied by the appellants. The fifth appellant's grandfather had inherited and acquired adjoining farms between 1895-1903. The property was transferred to the Divisional Council of the Cape (City's predecessor) under Crown Grant No 78/46 in 1946. The fifth appellant commenced farming with his father in 1947 on the adjoining farms. From 1969, the fifth appellant and his brother entered into successive written lease agreements for the property, continuing until 2001. The fifth appellant's evidence indicated the earliest period of possession he could recall was from around 1938 when he was 7-8 years old. When the lease expired in 2001, the fourth appellant decided not to renew as he believed the property belonged to his father. The City launched eviction proceedings in 2007. The appellants defended on the basis that the fifth appellant had acquired ownership through acquisitive prescription under the Prescription Act 18 of 1943.

• Whether the appellants proved the requirements for acquisitive prescription under section 2 of the Prescription Act 18 of 1943
• Whether continuous possession for 30 years was shown
• Whether the acts of possession were performed with animus domini (intention as owner)
• Whether the possession was nec vi, nec clam, nec precario (peaceable, open, not by permission)
• Whether acquisitive prescription could operate in respect of land subject to a public servitude
• Whether the entering into of lease agreements negated the claim of acquisitive prescription

The appeal was dismissed with costs, including the costs of two counsel. The High Court's order granting the eviction and dismissing the counterclaim for a declaration of ownership was upheld.

To establish acquisitive prescription under section 2 of the Prescription Act 18 of 1943, a claimant must prove on a balance of probabilities continuous civilis possessio (physical detention with animus domini) of the property for 30 years nec vi, nec clam, nec precario. The possession must be adverse to the true owner and not by virtue of a contract or legal relationship that recognizes the ownership of another. The same requirements apply to land subject to public servitudes as to other land, though the nature of the property is a relevant consideration in assessing whether the acts of possession demonstrate animus domini. Acts of possession that are sporadic or consistent with the designated public use of the land will not reasonably indicate possession as owner. Entering into lease agreements recognizing the owner's title interrupts the period of prescription and negates animus domini.

The court observed that it was unclear whether the fifth appellant could lawfully claim exclusive possession during the period 1947-1959 when acts of possession were performed jointly with his father and brother. The court also noted that the successive lease agreements appeared irreconcilable with a genuine belief of ownership, and that there were several indicators the fifth appellant did not regard the property as his own but merely used it without the consent of the owner while not prevented from doing so. However, in light of the court's primary findings on the failure to prove continuous 30-year possession, it was unnecessary to make final decisions on these matters.

This case provides important guidance on the application of acquisitive prescription under the Prescription Act 18 of 1943, particularly in respect of land subject to public servitudes. It clarifies that: (1) the requirements for acquisitive prescription do not become more onerous merely because land is subject to a public servitude, though the nature of the property remains a relevant consideration; (2) continuous possession must be proven for the full 30-year period and cannot be interrupted by acknowledgment of the owner's title through lease agreements; (3) acts of possession must reasonably demonstrate to the owner that the possessor is claiming ownership (animus domini); (4) sporadic use consistent with the designated purpose of land (such as grazing on an outspan) will not satisfy the requirements; and (5) entering into lease agreements is fundamentally inconsistent with a claim of ownership through prescription.