Little used legal doctrine secures informal land rights of the Grootkraal community

A decision by the Western Cape Department of Education to close a community school servicing the Grootkraal community outside Oudtshoorn this week resulted in a judgment by the Supreme Court of Appeal (SCA) that the community has the legal right to use and occupy the property which has since “time immemorial” been used by that community for religious and other purposes. The judgment relies on a little used legal rule and may assist other communities who similarly use and occupy land (formally owned by somebody else) to help them to secure rights to use and occupy that land.

If you take a drive from Oudtshoorn on the R328, past the Cango Caves, and continue on that road, you will spot next to the road (about 25 kilometres outside of town) “a nondescript building with a badge on the wall proclaiming it to be the Grootkraal UCC Primary School”. Apart from the school building, there is one separate classroom, some outbuildings, a children’s outdoor play area and a small, cultivated plot (see picture below).

The property on which these buildings are situated is a small portion of the farm Grootkraal, which extends from the road up into the foothills of the Swartberg. For generations members of the community have worked and lived in the area and have used the land and these buildings on the farm to conduct church services, community events and, later, to send their children to the school which was established on the land. As the SCA explains:

The Community is not a formal body, nor is it capable of exact definition. It is said to consist of those individuals who have historic and family ties with the Grootkraal area, where they and their forebears have lived and worked for many generations. By way of example, Ms Kiewits and Ms Tiemie are the fifth generation of their families to have lived and worked in the Grootkraal area. Other deponents claimed a similarly lengthy connection with the area and the property, and one deponent said that she was the ninth generation to have lived there.

The community has longstanding connections with the church that has existed on the property, so the community believe, for nearly 200 years. The members of this community include farmworkers, artisans, domestic workers at local resorts and people working in various capacities at the Cango Caves.

When the formal legal owners of Grootkraal farm brought proceedings against the Department of Education, the school and the school governing body, seeking the eviction of the school from the property, members of the community resisted this eviction and lodged a counterclaim seeking an order that a public servitude be registered over Grootkraal that would record and protect their rights to use and occupy this piece of land.

An eviction would have had devastating consequences for the community. The land, the church and the school can be viewed as the glue that keeps this community together. Apart from baptisms, weddings and funeral services, various other community activities, such as, bazaars, song festivals, dominoes tournaments, and other celebrations linked to the church and school have taken place there.

The community’s lawyers argued that because the community has used and occupied this land for as long as anyone can remember, this gave rise to a public right, by way of servitude, vested in the community to continue to use the property for those purposes in perpetuity. The problem is that no servitude had ever been registered in the deeds office to formalise this right – which means that on its face the community had no legal right over the land which it has been using for up to 200 years.

But the community’s lawyers had a trump card up their sleeve, namely the little known and little used common law doctrine of vetustas. (Full disclosure: my sister Anna-marie de Vos – with the assistance of junior counsel – argued the case on behalf of the community.)

The doctrine of vetustas relates to a right that has been exercised against another person and has been in existence for so long – since time immemorial – that no one can tell when, and therefore how, it arose. It is then assumed that the right arose lawfully, subject to the other party being able to rebut that presumption by showing that it had an unlawful origin.

In South African law one can acquire property or rights to use and occupy that property through prescription, but only if one openly and as though you were legally entitled to do so, exercised the rights and powers as owner or as lawful user for an uninterrupted period of at least 30 years. As black South Africans were for a long period prohibited from lawfully owning property or acquiring rights over property in vast areas of South Africa, few would be able to use prescription to acquire property or rights in property.

It is for this reason that the case was decided with reference to the doctrine of vetustas. It applies in cases where the right was acquired in a way that goes beyond proof.

By vetustas is understood a condition of things beyond living memory – immemorial usage. If it can be shown, or does appear how and when a particular work or construction was originally made, the doctrine of vetustas does not apply. … If, therefore, the facts of a given case show that the state of things in question is within living memory, that is to say, if there be probatio or memoria in contrarium, the doctrine of vetustas does not apply. In other words the origin of the right being claimed must be beyond proof (probatio) or contrary memory or recollection (memoria in contrarium).

To succeed with a claim under this doctrine, there must be proof that the right has existed for a very long time and that there is no certain knowledge or information of a different condition or practice having existed. The witnesses should state that in their own time and that of their forebears the practice existed and nothing was heard or reported to the contrary.
Once the members of the community show that they and their forebears have occupied and used the land for as long as anyone can remember, the onus then shifts to the formal legal owner of the property to prove that the origin of this use and occupation was unlawful.

What was novel about this case was that the right was being sought by a community (not an individual) and that the right being claimed was to use and occupy the property, not merely to have a right of way over the property or to discharge water across a neighbouring property. The SCA accepted that there is no reason why the entitlement of the public, or a defined section of the public, to use someone’s property in a particular way or for a particular purpose cannot give rise to a public servitude the existence of which may be established by proof of immemorial user.
The SCA judgment contains a long discussion of the history of the community and their church, before concluding:

at some uncertain date, between 1820 and the building of the church in the late nineteenth century, a Christian community was established at Grootkraal, with connections possibly to Dyssselsdorp, but definitely to Oudtshoorn. It is that Community, as part of the wider Grootkraal community, that has worshipped and conducted other church activities on the property ever since. It built the church and over the years it has associated itself with various churches in Oudtshoorn, itself operating as an outstation of these churches.

This was sufficient to establish that the state of affairs existing from time immemorial and this gave rise to a presumption that the right being exercised for all this time had been exercised lawfully. As the formal owners of the property had failed to rebut the presumption that the right had been exercised lawfully the SCA ruled that the community of Grootkraal:

being all the families and individuals who live and work on farms in the valley which is known as the Grootkraal-Kombuys area, as a portion of the public, has the right, in the form of a public servitude, to use and occupy the property… for the purposes of a Christian church and any related community activities, including the conduct of a school.

The SCA did not consider arguments about the possible need to develop the common law (to promote the spirit, purport and objects of the Bill of Rights) in order to assist the community involved to secure their informal land rights as required by section 25 of the Constitution. But one can imagine that other courts in future cases could well develop the doctrine of vetustas in ways that could assist communities who wish to secure informal land rights – including the right to use and occupy land – against the formal landowner.

But even without further development, this doctrine may come to the assistance of communities across South Africa who have used and occupied land for various purposes, but whose rights have not formally been secured by title deed. The judgement therefore has the potential to have application beyond the case of the Grootkraal community.

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