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Possessory Titles in Practice

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The week before last we looked at the Possessory titles Act, and today we look at the Act in practice for over seven years. Since the Act No. 38 of 2004 became law, certain directives in the form or explanatory notes have been given by the court to facilitate the efficient operation of the law, and these are especially applicable to certain procedures preliminary to the filing of the application.{{more}}

Survey plan

Surveying the land is preliminary to the filing of the application. For this we have to turn to the surveyors for their expertise. The surveyor must visit the land to ascertain the measurement of the land to locate the boundaries and to find out the names of persons owning adjoining plots. Upon completion he must produce a plan with a linear diagram of the land.

Covering Notes from Surveyor

The court requires a covering note with the plan specifically for the application for possessory title. This must include the applicant’s name and not that of the person who instructed him if he were instructed by a person other than the applicant. It must state clearly the boundaries of the land and the adjoining neighbours. The court will accept names only and not plan numbers. It must give the name of the licensed surveyor, the date when it was done and the particulars of the land. The court requires a plan that is less than three years old. It is rare for changes in the boundaries to take place over this short period of time and a more realistic time could be ten or more years.

Notices

After the affidavits of the applicant and two other persons (with knowledge of the land) application and exhibits are filed the applicant must give notice of the application in two newspapers. After two months, notices must be given again, posted in two newspapers. Persons who oppose the application could enter an appearance by notice to the Registrar. It must be followed by a claim, a copy of which must be served on the applicant. When a claim is made the matter becomes contentious. Affidavits have to be filed by the Bailiff to indicate that he served the notices on adjoining neighbours. The Registrar and Magistrate must indicate that notices were displayed and must sign to a certificate of compliance.

Court proceeding

The solicitor duties are extensive and perhaps the lawmakers did not anticipate because the practice directions broaden the scope of the act. In practice all possessory titles must be given a court hearing. Formerly, when there was no challenge to the title, there was no court hearing. According to section 12, an applicant may obtain judgment without trial where a person fails to enter an appearance or fails to file a written claim within the time allowed for so doing. Today every possessory title is in practice given a hearing, and the lawyer has to attend court.

Family titles vs. Adverse possession

However, I feel that there should be a distinction between titles which are done by families whose fore-parents did not have a paper title because in days gone by a receipt was given for payment of land instead of a deed and those which are actually in adverse possession. The length of time for advertising should be shorter for the former once consent is given by members of the family.

Ada Johnson is a solicitor and barrister-at-law.
E-mail address is: exploringthelaw@yahoo.com

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