Immovable Property: Prescription in a nutshell

Acquisitive prescription is an original way of acquisition in terms of which a real right is acquired in respect of movable or immovable things by means of the open and undisturbed possession thereof or the exercise of the rights for an uninterrupted period of 30 years (Van der Walt and Pienaar, 2009, Law of Property 6th edition).

In terms of the Prescription Act 68 of 1969, a person by means of prescription becomes owner of a thing which he openly and as if he were the owner has possessed for an uninterrupted period of thirty years or for a period that, together with the periods for which the things have been possessed in this way by his predecessors in title, would constitute an uninterrupted period of 30 years.

After completion of the period of prescription and if all the requirements of prescription are met, the possessor becomes the owner of the thing. In the case of movables, ownership passed and was not transferred by delivery. In the case of immovables, ownership is passed without registration of the immovable thing. The new owner can then, in terms of section 33 of the Deeds Registries Act, apply to have the property registered in their name.

The purpose of acquisitive prescription is not only to punish the previous holder of the right for not exercising the right but also to ensure legal certainty regarding the de facto position which has existed for a long period ((Pienaar v Rabie 1883(A)). Therefore, the negligence of the inattentive owner need not be claimed or proved to establish prescription. Legal certainty is not only in the interest of the person in whose favour the prescription runs but also in the interest of third parties such as creditors. Furthermore, prescription prevents extended litigation regarding ownership of the thing and is in the public interest that legal recognition is given to a factual situation that has existed for some time (Van der Walt and Pienaar, 2009, Law of Property 6th edition).

In the case of Gianchandi v Registrar of Deeds, Pietermaritzburg and Others (14 March 2023), it was considered whether a claim of acquisitive prescription should be ruled invalid due to the illegal use of water and electricity by the possessor. The court considered whether the facts in this matter satisfied the requirement that the property was "possessed openly and as if he were the owner thereof" by the possessor as a nursery. The possessor alleged that at the time that her application was brought, she had been in occupation of the property for a period of 31 years. She further asserted that she had exercised her possession openly and that she had possessed the property with the intention of possessing it and controlling it as if she was the owner. Various neighbours of the possessor confirmed, by way of confirmatory affidavits, that she had been using and occupying the property openly and been using the property as a nursery and a park for 31 years.

The respondents argued that the possessor had not been on the property for 30 years as she had failed to provide proof in her affidavit that evidenced the possession. The possessor’s ownership was further disputed due to her illegal connection of electricity and water and the lack of applications for legal water and light connections. The respondents also argued that the property was used illegally as it was zoned for public open space and that the possessor did not make an application to the municipality to use the property as a nursery.

The court considered the legal requirements to be met for a claim of acquisitive prescription to be granted. Section 1 of the Prescription Act 68 of 1969 provides that: “Subject to the provisions of this Chapter and of Chapter IV, a person shall by prescription become the owner of a thing which he has possessed openly and as if he were the owner thereof for an uninterrupted period of 30 years or for a period which, together with any periods for which such thing was so possessed by his predecessors in title, constitutes an uninterrupted period of 30 years.”

The court had to consider whether the requirement that the property be “possessed openly and as if he were the owner thereof” was met, as required by section 1 of the Act. The court held that the illegality of the water and electricity usage, the failure to apply for the requisite zoning, as well as the use of the nursery without the requisite authority could be separated from the issue of possession. The court ultimately held that the possessor was the rightful owner of the property through acquisitive prescription and was satisfied that the requisite factors regarding possession had been met, and it was ordered that the property be transferred into her name. It should, however, be noted that the courts were not condoning the illegal acts of the possessor, nor will they do so in the future.

Written by: Tatum Singh
Moderated and approved by: Clive Smith

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