Residents lose right of access to dam

Schoemansville residents have lost their right to access to the Hartbeespoort Dam as stated on property owners’ title deeds.

The Appeal Court last week dismissed with costs the appeal of the Oewer Club and the Hartbeespoort Snake an Animal Park against the ruling of Judge Norman Davis that the rights accorded to Johan Hendrik Schoeman, the founder of the first townships around the dam, were personal rights which lapsed when he died.

The title deeds of all properties in Schoemansville contain the following clause: “All registered erf-holders shall be entitled in common with Johan Hendrik Schoeman, his Successors in Township Title or Assigns, to the right of access to the dam near the south-eastern bank of the Crocodile River, for the purpose of boating on the said reservoir and fishing therein, subject to the conditions of Notarial Agreement No. 99/1922M, dated the 27th day of September 1922, filed in the Deeds Office…” The properties in Meerhof contain similar provisions, entitling property owners the right of access to the dam.

Judge Norman Davis ruled that the rights that Schoeman granted the buyers of his stands lapsed when he died. This implies that residents do not have the right of free access to the dam for boating and fishing anymore even though these rights are enshrined in their title deeds. He also ruled that Jack Seale, owner of the Hartbeespoort Snake and Animal Park, and the residents, cannot claim servitude through acquisitive prescription as they did not prove continuous use of the foreshore for more than thirty years. Residents’ claim on the use of the foreshore in terms of the Cabinet Minute has been ignored.

This follows an application by Schoemansville Oewer Club, Hartbeespoort Snake and Animal Park, and others last year that the state recognises property owners’ rights to access to the dam as contained in their title deed after the Department of Water and Sanitation tried to force the club, that was established by the stand owners of Schoemansville, to apply for a lease for the foreshore. Judge Norman Davies rejected the application and the club and animal park appealed the judgement and it was dismissed last week.

“The Department of Water and Sanitation wants to force the club, that was established by the stand owners of Schoemansville, to apply for a lease for the foreshore. Officials made it clear that the club would not necessarily be a preferred applicant and that the lease would only be for three years. Under the circumstances the club had no option but to approach the court to defend the residents’ rights to free access to the dam for the purposes of boating and fishing, as contained in their title deeds, and the reservation of a part of the foreshore for the use of erf holders of Schoemansville as contained in the Cabinet Minute of 1925,” said Willie Meyer of the Oewer Club.

“Although the Court of Appeals dismissed the appeal against Judge Davis’s ruling, it took note of the fact the Department of Water and Sanitation now acknowledges that the company Ontspan Beleggings, in which Jack Seale has an interest, in fact has a servitude on the part of the foreshore in front of the park and free access and use of the dam. The fact that the court did not rule on the enforceability of the Cabinet Minute in terms of which parts of the foreshore are reserved for specific uses, leaves more questions than answers. Residents in fact approached the court for protection against the threats of the department to lease out land on which they have been exercising their rights for almost a century. It is still not clear if the state has the authority to offer leases on the part of the foreshore that was reserved for residents in terms of the Crown Grant regulations of 1903.”

Meyer said according to preliminary legal advice, there are grounds for an appeal to the Constitutional Court because residents are being denied rights which have been in force for almost a century. However, it is an expensive process and the support of the community is essential. The alternative is the likelihood that, apart from the loss of their rights, residents can lose the club and the facilities which have been developed and maintained for a period of forty years.

“The club usually has it’s AGM this time of the year but due to the lock down it is not possible to have a meeting in the normal format. Hopefully the restrictions will be relaxed soon so that we can have a normal meeting. Members are encouraged to renew their membership as soon as possible in order to be able to continue to enjoy the club especially with the longer warmer days and a cleaner dam.”