oa Fundamina : A Journal of Legal History - , onheuglike tye en die Witpad by Langebaan

Volume 19, Issue 1
  • ISSN : 1021-545X
  • E-ISSN: 2411-7870



The origin of the principles constituting the doctrine of can be traced back to the Digest. It would be wrong, it is submitted, to regard it as a fully-fledged doctrine in Roman law. The doctrine was developed in European countries under the influence of canon law and particularly through the works of the Pandectists. According to the basic principles of the public obtains a right to make use of some "public servitude" such as a road or aquaduct on account of usage by the public of such facility since time immemorial. "Time immemorial" in the classic sense means since a moment in time that is unknown to any living person. It is permissible to produce hearsay evidence in terms of which people who are still alive testify that their forbears already made use of the facility or construction. There are many older South African cases in which the principles of immemorial user or immemorial custom have been applied, often without referring to old authorities or even mentioning . However, in later cases the principles of as such were spelled out and applied. The South African courts relaxed the rule a bit by accepting that a right has indeed been exercised since time immemorial if it is proved that the usage has been in existence for more than thirty years and no evidence rebutting the presumption that is created in the process can be adduced. , although showing similarities with prescription, should not be confused or placed on an equal footing with servitutes created through prescription, because there are important differences, as is pointed out in the article.

is not the type of doctrine that attracts the attention of the courts too often. Very recently, however, a case was reported in which was applied. The decision is 2013 (1) SA 37 (WCC). The court found in this case that the public obtained a right to use a certain road through use since time immemorial. This article fairly comprehensively deals with the decision in this case and the background to the dispute.

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