Just the other day I had a consultation with a client of mine in an eviction matter.

According to Mr A, he bought ERF 1234 WELKOM EXTENSION 3 (Vacant Land), from his friend, Mr B (Registered Owner) on 12 July 1994 for the amount of R 30 000.00 (Thirty Thousand Rand). My smart client produced an affidavit duly signed by him and Mr B. He even attached the receipt and gave me the original title deed.It was alleged by Mr A that he has been occupying the said property since 12 July 1994.  Possession occurred when the registered owner gave him the keys to the said property and when he moved in the property as owner. He has been occupying the said property as though he was an owner of the property without any disturbance by Mr B for a period of thirty years plus. He informed me that after Mr B’s death on 12 July 2025, his children instructed an Attorney to evict my client. As soon as he received the Notice of Eviction, he came to consult with me.

I will refer your good selves to section 1 of the Prescription Act [1].

“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 thirty 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 thirty years”.

However, one must bear in mind that prescription is interrupted in the following instances:

• If a person is under the age of eighteen years (Minor)
• A mental patient in terms of the Mental Health Act
• Person under curatorship or administration
• Where a Deceased’s person estate is not reported
• If the person is outside the Republic or a person married to such a person or is a member of the governing body of a juristic person against whom prescription is running
• There is a claim for ownership by a third party

           In the Burglar Alarm & Remote Control Services CC v Brits[2]”

In paragraph 4 of the Judgement the Court stated that the following:

           “The dispute arose around 22 March 2019.

Since the relevant period for acquisitive prescription in terms of section 1 of the 1969 Act is 30 years, the question for purposes of the declaratory order sought by the plaintiff is whether the fence had been regarded as the boundary between the parties' properties for 30 years prior to the service of the summons on the defendant on 27 May 2019”.

“In other words, by the time the action was instituted, had the fence had been regarded as the boundary for long enough to have enabled the plaintiff and its predecessors-in-title to have acquired ownership of the strip of land between the fence and the cadastral boundary by way of acquisitive prescription?”

The Judge further stated the following in paragraph 107 of the Judgement:

“In the present case I am satisfied that the prima facie discharge of the onus by the plaintiff has not been disturbed, and that the plaintiff has proved, on a balance of probabilities, that it and its predecessors-in-title have possessed the disputed strip of land openly, as owner, for a 30-year period.  It is not necessary to rely on an adverse inference against either party”.

From the above facts I already concluded that my client might have a defence in the eviction matter. His defence is that of Acquisition of ownership by prescription.

We just need to prove the following:

1. He must have taken physical control over the property with openness.

2.  He must have believed that the said property belongs to him and people must assume that he is the owner.

3.  He must occupy the property or be in physical control for an uninterrupted period of thirty years.