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89SAfricanLJ383

89SAfricanLJ383

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Citation: 89 S. African L.J. 383 1972Content downloaded/printed fromHeinOnline (http://heinonline.org)Thu Jun 13 09:54:34 2013-- Your use of this HeinOnline PDF indicates your acceptanceof HeinOnline's Terms and Conditions of the licenseagreement available at http://heinonline.org/HOL/License-- The search text of this PDF is generated fromuncorrected OCR text.-- To obtain permission to use this article beyond the scopeof your HeinOnline license, please use:https://www.copyright.com/ccc/basicSearch.do?&operation=go&searchType=0&lastSearch=simple&all=on&titleOrStdNo=0038-2388
 
VOL
89
THE
(Part
IV)
SOUTH
AFRICAN
November
1972
LAW
JOURNAL
RECENT
CASES
PRAESCRIPTIO-JUS
POSSIDENDI
AND
REI
VINDICATIO
In
MorkelsTransport
(Pty)
Ltd
v
MelroseFoods
(Pty)Ltd
&
another
1972
(2)
SA
464
(W)
the
plaintiff
claimedan
order
declaring
thatit
had,
by
prescription,acquired
theownership
of
certainplotsin
the
town-
ship
of
New
Doornfontein,
district
of
Johannesburg.
The
actionwas
opposed
by
thefirst
defendant
as
the
registered
owner
of
the
plots
andby
the Minister,
the
second
defendant,on
behalf
of
the
Govern-
ment
as
the
first
defendant's
immediate
predecessor
in registered
title.
The
firstdefendant
hadobtained
transfer
of
the
plots
from
theGovern-
ment
under
a
contract
of
exchange
concluded
in
1969.
The
Govern-
ment
itself
had
become
the
registered
owner
of
the
plots in
1949.
Prior
to
this
it
had
held
the plotsduringthegreater
part
of
thepre-
scriptionperiodrelevantto
the
presentaction
under
a
registeredcon-
tract
of
lease
with
the
Johannesburg
Estate
Co
Ltd,
which
was
theregistered
owner
during
the
period
from
1894
until
the
transfer
of
registeredownership
to the
Government
in
1949.
On
the
evidence
Colman
J
held
that
the
plaintiff
had
discharged
the
onusresting
upon
it
of
showing
that
the
use
of
the
plots,
throughout
therelevantperiod,
hadbeen
sufficiently
extensive
toconstitute
physical
possession.
Turning
tothe
lawrelating
to
acquisitive
prescrip-
tion,the
learned
judge
cited
therelevantportions
of
s
2
of
the
Prescrip-
tion
Act
18
of
1943
applicable
in
the
present
case:
'(1)
Acquisitive
prescription
is
the
acquisition
of
ownership
by
the
possession
of
another
person's
.
.
.
immovable
property
...
continuouslyfor
thirty
years
nec
vi,
nec
clam,
nec
precario.
'(2)
As
soon
as
theperiod
of
thirty
years
has
elapsedsuch
possessor
.
..
shall
ipso
jure
becomethe
owner
of
the
property.
...'
The
provisions
of
theAct,he
said,
constituted
neither
a
codification
nor
an
exhaustive
statement
of
the law
relating
to
acquisitiveprescrip-
tion.
The
learned
judge
referredhere
to
Swanepoel
v
Crown
Mines
Ltd
1954(4)
SA596
(AD)
and
went
onto
say:
HeinOnline -- 89 S. African L.J. 380 1972
 
THE
SOUTHAFRICAN LAW
JOURNAL
'Among
the
common-law
requirements
in
addition
to
continuous,
uninterrupted
possession,
nec
vi,
nec
clam,
nec
precario,
are
these:
the
possession
must
be
adverse
to
the
rights
of
the true
owner
(see
Malan
v
Nabygelegen
Estates
1946
AD
562
at
574);
and
it
must be
full
juristic
possession
(possessio
civilis),
as
opposed to
mere
detentio
(see
Welgemoed
v
Coetzer
1946
TPD
701
at
711-12).
There
must
have
been
no
acknowledgment
by
the
possessor
of
the
owner's title
(Voet
44.3.9).'
With
the
greatest
respect, in
Malan's
case
Watermeyer
CJ
did
not
state
that,
in
addition
to
the
requirement
of
possession
of
the
property,
the
possession
has
to
be
adverse
tothe rights
of
the
true owner.
What
he
actually
said
was:
'In
order
to avoid misunderstanding,
it
should
be
pointed
out here
that
mereoccupation
of
property
"nec
vi
necclamnec
precario"
for
a
period
of
30
years
does
not
necessarily
vest
in
the
occupier
a
prescriptivetitle
to
the
ownership
of
that
property.
In
orderto
create
a
prescriptivetitle,
such
occupation
must
be
a
user
adverse
to
the true
owner
and
not
occupation
byvirtue
of
some contract
or
legal
relationship
such
as
lease
or
usufruct
which
recognizes
the
ownership
of
another'
(at
574).
In
Welgemoed's
case
Murray
J
stated
that
'[tihe
authoritiesappearto
lay
down
that
the
possession
required
of
theclaimant
in
prescription
is
the
full
juristic-possessio
civilis-the
holding
or
detaining
of
thecorporeal
thing
with
the
intention
of
keeping
it
for
oneself
(Voet
41.2.1)
....
The
limited
possessio
naturalis
of
a
lessee,
commodatarius
or
the
like,
is
not
sufficient,
foreach
of
these persons
lacks
the intention
of
acquiring
and
keeping the
property
for
himself'(at
712-13).
It would
appear
that
the
above
cases
between
them
do
not
envisage
adverse
user
as
an
independent
prerequisite
foracquisitiveprescriptionin
addition tothe
requirement
of
possessio
civilis
(compare
1960
Annual
Survey
of
SA
Law
200-1).
Itmaybe
noted
that
s 1
of
the
Prescription
Act
68
of
1969
provides
that,
subject
to the
provisions
of
chapters
I
and
II,
a
person
shallby
prescription
become the
owner
of
a
thing
that
he
has
possessed
openly,
as
if
he
were the
owner
of
it,
for
an
uninterrupted
period
of
30 years.
Obviously,
the
new
Actrequires
possessio
civilis.
To
add
adverse
user
to
this
as
an
additional
common-law
requirement
of
acquisitive
pre-scription
can
only
confuse
the
issue
and
the application
of
the
clear
wording
of
theAct.
In
the
present
case
the
learned
judge
held
thatthe
plaintiff's
possession
had
been
neither
vi
nor
clam.
Following
Malan's
case,
he accepted
that
a
person
who
holds
a
thing
on
sufferance
or
byvirtue
of
a
permission
which
is
revocable
at
the will
of
the
grantor,
holdsprecariously.
On the
evidence, heheld
that
the plaintiff
had
failed
to
prove,
asa
fact
or a
probability,
that
for the whole
of
the
requisite
period
it
and
its
pre-
decessors
had occupiedotherwise
than
under
precarious
tenure.
Although
this
conclusion
sufficed
to
decide
the
issue,
Colman
J,
in
view
of
a
possibleappeal,
went
on
to
expresshis
views
about
two
other
issues
on
which,
as
he
said,
he
hadhad
the
benefit
of
counsel'sfull
and
able
argument.
HeinOnline -- 89 S. African L.J. 381 1972

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