It is clear that the Proclamation was intended to regulate the erection and maintenance of dividing fences between adjoining properties and to deal with disputes relating to that. [8] submissions Applicant’s Counsel submitted that the respondents failed to proof an agreement pertaining to the alleged and take and no determination was ever made regarding the ‘give arrangement’ alleged and It is non-existent and the actions ‘give take’ arrangement. respondents’ amounted to unlawful land grabbing. Counsel further submitted that the Fencing Proclamation, 57 of 1921 does not apply to this matter. [9] submissions Respondents’ Counsel submitted that the borderlines between applicant and second respondents are not in dispute. The dispute relates to the fencing erected in terms of the Proclamation. Counsel argued that the and arrangement clearly applied in the past as there ‘give take’ was an existing fence which was at least between 30 and 50 years old and that is the fence which the workers of the respondents repaired. According to counsel, the give and take arrangement applies, because the second a respondent, ‘clearly cannot erect fence in the middle of the Natas River, nor is it practical or expedient or cost effective to erect a fence on the inner bank of the Natas River.’ The applicant denied that the provisions of the Fencing Proclamation No 57 of 1921 apply to the dispute between the parties because the definition of in ‘dividing fence’ section 2 of the Proclamation states: shall mean, in relation to a holding, ‘dividing fence’ fence erected on or as near as possible to any boundary thereof and separating that holing from and submitted that no dividing fence or dividing line is formed by a another’ watercourse or a river in the manner alleged by respondents as contemplated by sections 31 (1) and (2) of the Proclamation since the border of the farm applicant’s along the Kuiseb River does not separate the from one and parties’ holdings/farms other.
It is clear that the Proclamation was intended to regulate the erection and maintenance of dividing fences between adjoining properties and to deal with disputes relating to that. [8] Applicant’s submissions Counsel submitted that the respondents failed to proof an agreement pertaining to the alleged ‘give and take arrangement’ and no determination was ever made regarding the alleged ‘give and take’ arrangement. It is non-existent and the respondents’ actions amounted to unlawful land grabbing. Counsel further submitted that the Fencing Proclamation, 57 of 1921 does not apply to this matter. [9] Respondents’ submissions Counsel submitted that the borderlines between applicant and second respondents are not in dispute. The dispute relates to the fencing erected in terms of the Proclamation. Counsel argued that the ‘give and take’ arrangement clearly applied in the past as there was an existing fence which was at least between 30 and 50 years old and that is the fence which the workers of the respondents repaired. According to counsel, the give and take arrangement applies, because the second respondent, ‘clearly cannot erect a fence in the middle of the Natas River, nor is it practical or expedient or cost effective to erect a fence on the inner bank of the Natas River.’ The applicant denied that the provisions of the Fencing Proclamation No 57 of 1921 apply to the dispute between the parties because the definition of ‘dividing fence’ in section 2 of the Proclamation states: ‘dividing fence’ shall mean, in relation to a holding, fence erected on or as near as possible to any boundary thereof and separating that holing from another’ and submitted that no dividing fence or dividing line is formed by a watercourse or a river in the manner alleged by respondents as contemplated by sections 31 (1) and (2) of the Proclamation since the border of the applicant’s farm along the Kuiseb River does not separate the parties’ holdings/farms from one and other.