LEGISLATION – PRESCRIPTION ACT – ACQUISITIVE PRESCRIPTION – PLAINTIFF’S POSSESSION IRRECONCILABLE WITH GENUINE BELIEF THAT SHE WAS THE OWNER OF THE PROPERTY

LEGISLATION – PRESCRIPTION ACT – ACQUISITIVE PRESCRIPTION – PLAINTIFF’S POSSESSION IRRECONCILABLE WITH GENUINE BELIEF THAT SHE WAS THE OWNER OF THE PROPERTY

The plaintiff initiated action against the first defendant seeking a declaratory order confirming that she acquired certain immovable property through prescription as contemplated in section 1 of the Prescription Act 68 of 1969, in that she had been in possession of the property for 30 years. The first defendant defended the action and launched a counterclaim seeking an order for the eviction of the plaintiff from the property.

The court dismissed the plaintiff’s claim and upheld the first defendant’s counterclaim and granted an eviction order against the plaintiff, in doing so, USIKU J found and held that:

1. The continuous possession required by section 1 is the physical detention of the thing, with the intention to be the owner of the thing (animus domini). In addition, the possession must be peaceable, without a grant on the request of the possessor, and the possession must have been exercised openly, so that the owner with the exercise or reasonable care, would have observed it.
2. To create a prescriptive title, such occupation must be a ‘user adverse’ to the true owner and not occupation by virtue of a contract or a lease. The mere occupation of a property for thirty years does not necessarily vest the occupier with a prescriptive title to the property.
3. The onus to prove that their use of the property satisfies the requirements of section 1 rests on the party that relies on acquisitive prescription.
4. In casu, the plaintiff was paying rent to NHE (or its predecessor), which must have been in terms of a lease agreement with NHE, and the payment of rent is inconsistent with such a genuine belief that the plaintiff possessed the property as if she were the owner.
5. On a careful reading of the evidence presented before the court, the probabilities favour the version of the first defendant that the plaintiff and her family were granted permission to occupy the property by the first defendant’s late husband on the terms that they pay for water and electricity. That agreement negates the plaintiff’s contention that she possessed the property as if she were the owner.
6. The Plaintiff thus failed to meet the requirements of continuous possession of the property as if she were the owner. The claim for acquisitive prescription could thus not stand.
7. In regard to the first defendant’s counterclaim, the first defendant proved that she was married to Mr. Shirunda and the property is registered in their joint names. She was duly appointed executrix in the estate of Mr. Shirunda and the property is being occupied by the plaintiff and her family against her will. She was therefore entitled to the relief claimed in the counterclaim.

Hangula v Shirunda NAHCMD 14 October 2022