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The little-known doctrine of vetustas (time immemorial)
03 June 2021  | Donald Fischer  | Download document
 

Introduction

The doctrine of vetustas is an ancient legal doctrine that resurfaces every now and then in South African law.  Despite being an ancient and almost forgotten doctrine, vetustas has been able to assist communities in gaining rights to land that they have used or had access to for a very long time. The doctrine relates to a right that has been exercised and has been in existence since “time immemorial”, and no one can verify when it arose. The two cases of Langebaan Ratepayers’ and Residents’ Association v Dormell Properties 391 (Pty) Ltd and Community of Grootkraal v Botha NO indicate how the doctrine is applied.

 

The doctrine of vetustas

According to the basic principles of vetustas the public obtains a right to make use of a public servitude such as a road or an aqueduct, on account of usage by the public of such a facility since time immemorial.

Goudsmit defines the doctrine as follows: "When any state of things had endured so long a time that its origin dated back to a period to which the memory of man did not extend, there was a legal presumption that such origin had been legitimate and the parties were dispensed from furnishing proof that it was so... The nature and quality of proof to be adduced by the parties, it is unnecessary to consider".  In other words, the doctrine relates to a right that has been exercised against another person and has been in existence since time immemorial to such an extent that no one can tell when, and therefore how, it arose.

Volume 24 of the Law of South Africa encyclopaedia states the following: "The existence of a public servitude can be asserted by proving vestus or immemorial user”. In terms of this doctrine there is a rebuttable presumption that where a so-called public servitude has been exercised by members of the public from time immemorial, such servitude arose by virtue of a valid title even though there is no written proof of the validity of the rule.

 

Relevant case law

In the High Court case of Langebaan Ratepayers’ and Residents’ Association v Dormell Properties 391 (Pty) Ltd, the developer, Dormell, closed the "White Road" with a boom at the southern entrance and a gate at the northern entrance and refused to allow the public to have access thereto. The developer argued that the White Road constitutes private property and the public is not entitled to its use.

Consequently, the Langebaan Ratepayers’ and Residents’ Association sought declaratory relief confirming that a public servitudal right of way, constituted by ancient use or immemorial use, exists in favour of the public along the route followed by the White Road. The public in general had a right of access to the White Road since time immemorial, which it enjoyed historically on an unencumbered basis. The road was previously used, and is still used, for recreational purposes which include walking and cycling. It was argued that the closure of the road prevented and hindered the ability of the members of the applicant as well as members of the wider public from accessing the beaches.

The court applied the doctrine of vetustas and held that Dormell had failed to rebut the presumption that the origin of the use of the road was lawful. Evidence was presented including maps from a book on the history of Saldanha and the evidence of two elderly residents from the area, which established on a balance of probabilities that the public had access to the road long before it was proclaimed a provincial road in 1968. In the circumstances, a public servitude right of way existed in favour of the public over the road.

A similar result was achieved in the important Supreme Court of Appeal case of Community of Grootkraal v Botha NO. The Trustees of the Kobot Business Trust (the Trust), being the legal owners of the Grootkraal farm, brought proceedings against the Department of Education, the school on the farm and the school governing body, seeking the eviction of the school from the property.

The community of Grootkraal argued that as a result of missionary activity, a church was established on the Grootkraal farm in the early nineteenth century and therefore, resisted the 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.

For many years members of the community worked and lived in the area and used the land and the 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. The community’s attorneys argued that a public servitude for religious, school and related community purposes existed in favour of the community and that its lawful existence was confirmed by the principles of vetustas.

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 Supreme Court of Appeal held that to succeed with a claim under the doctrine of vetustas, there must be proof that the right has existed since time immemorial and that the origin of the right being claimed must be beyond proof. The court declared that the community of Grootkraal has the right, in the form of a public servitude, to use and occupy the portion of the farm, for the purposes of a Christian church and any related community activities, including the conduct of a school. The Registrar of Deeds was directed to register a public servitude over the property.

 

Conclusion

The little-known doctrine of vetustas 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 judgments aforementioned confirm that the existence of a public servitude can be asserted by proving the doctrine of vetustas, which provides for a rebuttable presumption in that where a public right has been exercised by the members of the public from time immemorial, a servitude arose by virtue of a valid title, even though there is no written proof of the validity of the title.

 

This article is intended for information purposes only and is a brief exposition of the abovementioned legal position. Mention is not necessarily made of all the finer nuances as set out above. This article should under no circumstances be construed as formal legal advice. Contact VDT Attorneys for assistance in this regard.

 

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