THE HARTIES FORESHORE JUDGEMENT: UNTANGLING THE WEB

If you don’t understand what the sudden hush in town is about, don’t feel alone. There has been a super important court ruling involving the Harties dam foreshores and – nothing. Confused silence. People generally don’t seem to understand what is going on, while some say: Calamity!

Is it a calamity or is the judgement a step towards order from the chaos reigning on our foreshores?

Behind all the apparent complexity of the court case and the legal jargon the judgement of Justice Davies is actually not so difficult to understand. His order furthermore gives us a very interesting window on the founding period of our dam and precincts, which was not really very clear before now. An open discussion about this subject was marred up to now by various restrictive factors in our town. This sort of small town group-think often  gets a big surprise when tested objectively outside of the town borders. In a way the judgement brings much needed clarity to about two decades of exploitable uncertainty about foreshore ownership. With many of the sections of the dam foreshore still being occupied without any formal documentation, one might say there reigns chaos of medieval proportions.

The complete judgement is available here: https://harties.net/foreshore-ruling/

All applicants for leases on Harties dam’s foreshore – whether existing foreshore managers or new applicants – were impacted by the court case. It is very likely that this court case added to the extended delay in allocation of leases by the Department of Water Affairs to lease applicants.

 

Who had a disagrees with who?

Long standing and influential Harties resident and owner of the Snake Park, Mr Jack Seale, took on some government departments due to his perception of rights due to him on the dam and foreshores. As highlighted by Justice Davies, the legal action was clearly activated in response to the process of foreshore lease allocations by the Department of Water Affairs (DWS).

A secondary applicant which became involved was Schoemansville Oewer Club. The Club decided to join the court case to prevent DWS to allocate leases on the foreshore area managed by the Club. Indications are that the Club did not apply directly for a lease from DWS.

Another respondent was Transvaal Yacht Club (TYC), neighbouring the Snake Park. Mr Seale is unhappy about TYC occupying some of the foreshore area in front of the Snake Park and that TYC applied for a lease from DWS for that area.

 

What was requested from the Court?

It was requested that the servitude of dam access rights to Johan Schoeman (son of General Hendrik Schoeman) as mentioned in the notarial deed of 1922 be registered by way of declaring the contractual conditions fulfilled (the applicable law term is “fictional fulfilment). These rights followed from be the access rights originally accorded to Johan Schoeman by the government as part of the 1918 sales contract of a section of the dam property. He signed these rights over to his sons Lincoln and Tolstoy who eventually signed it over to Jack Seale. The intention to register this servitude was incorporated into a Notarial Deed in 1922, though it was stated that the servitude could only be registered with completion of the purchase and consolidation of the remaining properties now falling under the dam. These conditions were not fulfilled and the servitude not registered.

As alternative to a servitude, an order was sought that the state is contractually bound to the agreement to give Johan Schoeman and his assigns access rights.

When he founded the Meerhof and Schoemansville townships, Johan Schoeman also had the wording of the rights allocated to him incorporated into the title deeds of the new properties. An order was therefore sought that the access rights being practiced by stand owners adjacent to the dam for more than 30 years – as if there was a servitude registered – should thus be formalised as an actual servitude of access of these stands against the state owned land on which the dam is located (a servitude favouring dominant properties against a servient property).

It was furthermore requested that the applicants have a say in the pending foreshore lease allocations by the Department of Water Affairs.

 

What was the claimed rights all about?

The wording of the original sales contract stayed the same in the later documents and states that Johan Schoeman had the right of access at three positions to the new dam for purposes of boating and fishing. Johan Schoeman used this right to have the government formulate the Crown Grant of 1924. In this Crown Grant a property was assigned to him which he used as access point for a boating business. This property was now developed as the Snake Park. The Crown Grant also allocated rights to Transvaal Yacht Club on a section of the foreshore. According to the Crown Grant two other sections of the Schoemansville foreshore were also reserved. The first was for commercial boating. The remaining foreshore area between Tolstoi and Monene streets was reserved as a section of foreshore as “a landing place for the owners of stands in Schoemansville Township”. Judge Davies made it clear in the judgement that the applicants did not ask for their rights to be acknowledged based on the rights allocated in the Crown Grant, but rather on the rights allocated in the original sales contract and notarial deed. One gets the feeling that here is a hint that the owners’ access rights based on the Crown Grant can (or should) be further pursued.

 

The judgement in a nutshell

The first item concerned the fulfilment of the agreement of the state to register a servitude for Johan Schoeman’s access rights. The ruling was that there was no proof of an intention by the state to purposefully not purchase the remaining stands (a contractual condition) just to avoid fulfilling the conditions and finalise the agreement to register a servitude for Johan Schoeman’s rights. This could have lead to a fictional fulfilment of the conditions by law and confirmation of Johan Schoeman’s contractual right to a servitude.

Secondly a ruling was given about the issue of the rights / servitude being praedial (connected to the property) or personal (connected to a person). The ruling was that the rights were personal to Johan Schoeman and lapsed with his death, notwithstanding the fact that he signed it over to his sons and had it taken up in the title deeds of the township properties. Due to the rights thus being personal and not praedial (connected to the property) the Schoemansville and Meerhof properties can not be regarded as dominant (obtaining the rights) against a servient state property (giving the rights).

Justice Davies highlighted the fact that there was no evidence of the contention by the applicants that the state still owed Johan Schoeman money in the transaction. The implication that he therefore somehow retained his original rights before the sales transaction was shot down. He furthermore states that the meaning of the word “assigns” in the 1918 sales contract should be interpreted as persons that Johan Schoeman may have authorised to exercise his access rights on his behalf.

Thirdly, Justice Davies ruled that a contention of rights being obtained against state land due to exercising of these rights for a period of longer than 30 years must fail. This is mainly due to the Prescription Act of 1969 indicating that no state land can be acquired by prescription (continued occupation) after 1971.

Further clarity must now be obtained regarding the allocation of foreshore leases by the Department of Water Affairs to waiting foreshore managers and new applicants. Clarity must be obtained regarding the way forward for Schoemansville Oewer Club in terms of the foreshore lease allocation process. Historical related occupation right perceptions and claims on our foreshores should also now be brought into new focus.  In other words – residents of Hartbeespoort – now is the time to clean up the state of ownership chaos which reigned on our foreshores. We must hold the state accountable for a proper legal and transparent lease allocation process. This process must be underpinned by a proper dam management plan involving all local stakeholders, including the residents. Where is this plan and what happened about the state’s intention to appoint a dam management committee? We must prevent the situation sliding again into a similar state of chaos.

This story is developing and updates will be provided.