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In the court case of Buckland v Manga (2008)2 ALL SA 177(E) judge Pillay was asked to apply the provisions of section 6 of the Prescription Act 68 of 1969 (the Act) to the following facts.
In brief the applicant sought declaratory relief confirming his right of way to the gate at the rear of his property along the passageway belonging to the respondent, and directing the respondent to remove any physical obstacles to the applicant exercising such servitude. The applicant and respondent were owners of adjacent properties , separated by a passage way .The sole issue for determination was whether the applicant had acquired servitude over the passage by prescription or not.
Section 6 of the Act provides that a person should acquire servitude by presumption if he has openly exercised the rights and powers that a person who has a right to such servitude is entitled to exercise for an uninterrupted period of 30 years.
The court held that the right in question was that of a right to a praedial servitude .It was a right to a servitude for which various periods by predecessors in title could be taken into account if they were consecutive and uninterrupted and totalling at least 30 years.
It was common cause that the applicant and his predecessors in title had exercised the rights and powers to use the passage openly and as though he was entitled to do so, as a person who indeed had a right to such servitude. This had gone on for an extended period of time, and the court found it difficult to believe that the respondent was unaware of that fact in all that time.
The applicant succeeded and thus required the right to the servitude due to prescription.