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The doctrine of vetustas – Communities may secure formal legal rights to use and occupy land owned by somebody else.

Reading Time 8 minute read
Community of Grootkraal v Botha NO and Others (1219/2017) [2018] ZASCA 158 (28 November 2018)

In a landmark judgment in the matter of Community of Grootkraal v Botha NO and Others, the Supreme Court of Appeal ("SCA") upheld an appeal by the Community of Grootkraal that it has a legal right to use and occupy land owned by somebody else, which land has since time immemorial been used by Community of Grootkraal for religious and other purposes.


The Trustees of the Kobot Business Trust ("the Trust") are registered owners of a farm in Oudtshoorn, Province Western Cape ("the Property"), which they bought in 2009 and decided that they wanted to develop the Property into a game farm for commercial purposes.  

On a small portion of the Property, is situated “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 outbuilding, a children’s outdoor play area and a small, cultivated plot.

As a result of missionary activity, in the nineteenth century a church was built on the Property for members of the Community of Grootkraal ("the Community"), which is largely drawn from the Coloured sector of the population.  In 1930 or 1931 this was extended to the conduct of a school in the church building.   The Grootkraal UCC Primary School (which today also serves as a school for 202 pupils) has been operating from the Property for 85 years. The school is a public school in terms of Chapter 3 of the South African Schools Act 84 of 1996.  The Department of Education, Western Cape Department chose to close the close by merging it with a school at Voorbedacht.  

The School and its governing body opposed that decision and obtained an interdict prohibiting the closure or relocation of the school without proper consultation with the relevant stakeholders. Five months later the Trust brought proceedings against the Department, the school and the school’s governing body seeking the eviction of the school from the Property. The Community resisted this eviction and lodged a counterclaim seeking an order that a public servitude be registered over the Property that would record and protect their rights to use and occupy the Property.

The Community’s claim

The SCA noted that 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.

The Community contended that as a result of missionary activity a church was established on the Property in the early part of the nineteenth century. Since then and up until the present day, they and their forebears have, as of right, used the Property for church and church related purposes. In 1930 or 1931 this use was extended to the conduct of a school in the church building. 

Apart from baptisms, weddings and funeral services, various other community activities, such as, bazaars, son festivals, dominoes tournaments and other celebrations linked to the church and school have taken place there. The Community argued that all 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 Community sought a declaratory order in the form of a public servitude to use and occupy the Property for purposes of conducting a church, school and any other community activity. They further sought an order directing the Registrar of Deeds to register the right against the title deed of the Property.  

The Community advanced the legal argument that a public servitude of user 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

The doctrine of Vetustas

The SCA noted that 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 other words, it applies in cases where the right was acquired in a way that goes beyond proof. ‘Time immemorial’ in the classic sense means since a moment in time that is unknown to any living person. 

The SCA noted that 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. The SCA noted that the doctrine of vetustas may appear similar to prescription, but the two operate in different ways. Prescription depends upon an act adverse to the interests of the owner and lacking legal authority. The doctrine of vetustas presumes a lawful act, but that presumption can be rebutted by proof of unlawfulness. Prescription creates rights arising from conduct by the claimant and their predecessors in title adverse to and infringing upon the rights of the other party. It creates a right and not a rebuttable presumption. By contrast, vetustas does not create a right, but dispenses with the need to prove its origin. Once the party relying on it has proved the immemorial existence of the state of affairs that it is desired to maintain, it is presumed that such state of affairs was created in a lawful way. The onus then shifts to the other party to prove that it lacked a lawful origin. 

The SCA further held 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 held that to succeed with a claim under the doctrine of vetustas, there must be proof that the right has existed for a very long time (‘time immemorial’) and that there is no certain knowledge or information of a different condition or practice having existed. In other words the origin of the right being claimed must be beyond proof or contrary memory or recollection.

The SCA held that there is no legal bar to the Community’s contention that it is entitled to the registration of a public servitude, provided it can establish a right to use, for religious and educational purposes, on a small and defined portion of the larger property, that is Grootkraal, by invoking the presumption of lawful creation afforded by the principles of vetustas. Whether it can do so depends upon the evidence of immemorial user, which in turn depends on the history of Grootkraal and the circumstances in which the property came to be used for religious purposes.  

In determining the evidence of immemorial user, the SCA considered the history of the Grootkraal and the circumstances in which the Property came to be used for religious purposes. Having considered the history, the SCA came to the conclusion that it is not possible to pierce the veil of history to an earlier date and the history of the church at Grootkraal up until the last couple of decades of the nineteenth century is obscure. 

The SCA held that the inevitable conclusion from the history canvassed is that the circumstances in which the church community at Grootkraal came into being, and obtained the use of the Property for the church and church related purposes, are lost in the mists of time. It can safely be concluded that the church existed by the latter stages of the nineteenth century, when the Community erected the church building, but it obviously had its roots at an earlier time and may go back as far as 1838 or even earlier. 

The SCA further noted that the fact that successive owners of the Property at no stage stepped in to prevent the church from operating, or asserted that it was operating unlawfully, is an indication that the use of the Property by the Community occurred lawfully.

Accordingly, the SCA held that the history canvassed was sufficient to establish a state of affairs existing from time immemorial, which then gives rise to a presumption that the right being exercised for all this time has been exercised lawfully. 

The SCA then considered whether the Trust rebutted this presumption by showing that the exercise of the right had an unlawful origin? In this regard, the SCA held that the Trust did not do so, in part because of its misunderstanding of the law relating to the doctrine of vetustas. Accordingly, the Trust failed to discharge the onus cast upon it by the presumption.

The Community’s claim to be vested with a public right therefore, succeeded. The SCA accordingly, declared 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 portion of the Property, 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. 


A public servitude grants certain rights in favour of the public over a particular immovable property. The SCA judgment confirms 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.

Although, there are many older South African cases in which the principles of immemorial user or immemorial custom have been applied, the doctrine of vetustas is rarely invoked by our Courts.  

This judgment is likely to pave the way for many historically disadvantaged communities to secure formal legal rights to use and occupy land that they have used and occupied for time immemorial, which land is owned by somebody else.    


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