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(Part IV)

VOL 89


November 1972



In Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd & another
1972 (2) SA 464 (W) the plaintiff claimed an order declaring that it had,

by prescription, acquired the ownership of certain plots in the township of New Doornfontein, district of Johannesburg. The action was opposed by the first defendant as the registered owner of the plots and by the Minister, the second defendant, on behalf of the Government as the first defendant's immediate predecessor in registered title. The first defendant had obtained transfer of the plots from the Government under a contract of exchange concluded in 1969. The Government itself had become the registered owner of the plots in 1949. Prior to this it had held the plots during the greater part of the prescription period relevant to the present action under a registered con-

tract of lease with the Johannesburg Estate Co Ltd, which was the registered owner during the period from 1894 until the transfer of registered ownership to the Government in 1949. On the evidence Colman J held that the plaintiff had discharged the onus resting upon it of showing that the use of the plots, throughout the relevant period, had been sufficiently extensive to constitute
physical possession. Turning to the law relating to acquisitive prescrip-

tion, the learned judge cited the relevant portions of s 2 of the Prescription 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 ...

continuously for thirty years nec

vi, nec clam, nec precario. '(2) As soon as the period of thirty years has elapsed such possessor . .. shall ipso jure become the owner of the property. ... '

The provisions of the Act, he said, constituted neither a codification

nor an exhaustive statement of the law relating to acquisitive prescription. The learned judge referred here to Swanepoel v Crown Mines Ltd 1954 (4) SA 596 (AD) and went on to say:

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'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 to the rights of the true owner. What he actually said was:
'In order to avoid misunderstanding, it should be pointed out here that mere occupation of property "nec vi nec clam nec precario" for a period of 30 years does not necessarily vest in the occupier a prescriptive title to the ownership of that property. In order to create a prescriptive title, such occupation must be a user adverse to the true owner and not occupation by virtue 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 authorities appear to lay down that the possession required of the claimant in prescription is the full juristic-possessiocivilis-the holding or detaining of the corporeal 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, for each 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 for acquisitive prescription in addition to the requirement of possessio civilis (compare 1960 Annual Survey of SA Law 200-1). It may be noted that s 1 of the Prescription Act 68 of 1969 provides that, subject to the provisions of chapters I and II, a person shall by 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 Act requires possessio civilis. To add adverse user to this as an additional common-law requirement of acquisitive prescription can only confuse the issue and the application of the clear wording of the Act. In the present case the learned judge held that the 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 by virtue of a permission which is revocable at the will of the grantor, holds precariously. On the evidence, he held that the plaintiff had failed to prove, as a fact or a probability, that for the whole of the requisite period it and its predecessors had occupied otherwise than under precarious tenure. Although this conclusion sufficed to decide the issue, Colman J, in view of a possible appeal, went on to express his views about two other issues on which, as he said, he had had the benefit of counsel's full and able argument.
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After an exposition of the mental element in possessio civ ilis, variously called the animus domini, animus possidendi or sibi habendi (the intention to hold the thing as one's own), the learned judge held that this mental element was lacking on the part of the plaintiff. In his view, the state of mind of the plaintiff and of its predecessors 'was rather the state of mind of a precarious holder or of a trespasser who knew that his occupancy could be terminated at any time, and who intended to give up occupation if called upon to do so'. The query may be raised whether this intention to give up occupation should necessarily exclude the intention to hold as owner. A mala fide possessor may well have the intention to hold a thing as his own but at the same time intend to give up occupation when called upon to do so by the owner, for instance to avoid a lawsuit he is certain to lose. The further issue which the learned judge considered was whether or not the possession of the plaintiff and its predecessors had been proved to be adverse to the rights of the owner. He considered that 'the requirement that the possession be adverse is of great importance in the law of acquisitive prescription because it is one aspect of that requirement which, more than anything else, ensures that it is the idle and slovenly owner, and not one who is alert but incapable of acting, who may lose his property by prescription'. He pointed out that in Malan v Nabygelegen Estates Watermeyer CJ contrasted adverse user with occupation 'by virtue of some contract or legal relationship, such as lease or usufruct which recognizes the ownership of another'. After stating that Watermeyer CJ was not propounding an exhaustive definition of 'adverse user or its contrary, but was merely giving familiar examples of non-adverse user, the learned judge continued (at 479):
'Other authorities show that the concept of non-adverse use or occupation has a wider field of application than that exemplified in the dictum of Watermeyer CJ. Without myself attempting a full definition (which is not necessary for the purpose of this case), I go so far as to say that no use, occupation or possession is adverse, for the purposes of the law of acquisitive prescription, unless the owner has a legal right to prevent it. The proposition, so stated, covers part (although not the whole) of the ambit of the maxim contra non valentem agere nulla currit praescriptio. 'The maxim reflects the English common law. That appears from Broom Legal Maxims 7 ed (1900) 680 and from Salmond on Jurisprudence 11 ed (1957) 478 n(k).' In Dalton v Angus (1881) 6 App Cas 740 at 749 Fry J referred to and justified the maxim in language which appears to me to be consonant with the principles of South African law. He is reported, at 773, as having said this: ". . . it is plain good sense to hold that a man who can stop an asserted right or a continued user and does not do so for a long time, may be told that he has lost his right by his delay and his negligence .... But there is no sense in binding a man by an enjoyment he cannot prevent, or quieting a possession which he could never disturb." 'Having quoted the maxim, together with another well-known one, the learned judge went on to say that they showed that "prescription and assent are only raised where there is a power of prohibition". 'The reasoning of FryJ was approved in Dalton v Angus (supra) by Lord Penzance at 803 and by Lord Blackburn at 823.
' Now Salmond on Jurisprudence 12 ed (1968) and Broom Legal Maxims 10 ed (1939).

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'Neither Voet nor Van der Keessel, when dealing with acquisitive prescription (a passage cited to me from Voet 44.3.11 appears to deal with extinctive prescription) propounds the rule in the full term of the maxim, although both writers recognize specific cases falling within the ambit of the rule. But Wessels in his History of Roman-Dutch Law at p 643 refers to "the rule praescriptionon currit contra non valentei agere" and seems to indicate that it is part of our law. And there is at least one of our venerable text-writers who unequivocally quotes the rule as part of the Roman-Dutch law. I refer to Van Zurck, who appears to have been the author of an important work on the civil law of the Netherlands first published in 1711. In the 4th (1764) edition of Van Zurck's Codex at p 887 and under the heading "Prescriptie, Verjaring, Verloop van Tyd", we find para XIII, wherein the writer, without comment, says: "non currit praescriptio, contra non agere valenten", and as authority for that proposition he quotes, inter alia, a work of Carpzovius which is not available to me.'

With the greatest respect, the statement that the above maxim is to be found in at least one of our venerable writers is an understatement. The maxim was used in the Netherlands by authors as early as Damhouder (1507-81) and Peckius (1529-98), who respectively wrote: 'Tegen impotentie en niet ageeren en konnen en loopt geen prescriptie'
(Practycke in Civile saecken cap 87 nu 37) and: 'non valenti agere non currere praescriptionem' (De iure sistendi cap 30 nu 4 and De testamentis

conjugun lib 1 cap 38 nu 1). Later authors to be mentioned are Christinaeus In leges municipales civium Mechliniensium commentaria 1.28.14;

Vromans-Middelland De foro competenti lib III s III; Bynkershoek
Quaestiones iuris privati cap XV; Schorer n 37 ad Gr 2.7.9: 'De iure verissimum agere non valenti non currere praescriptionem'; Schrassert Observationes, Practicae obs 374.1: 'Contra non valentem agere non currere

praescriptionem'; and Voet 13.7.7 and 44.3.11. Colman J succinctly stated that 'a passage cited to me from Voet 44.3.11 appears to deal with extinctive prescription'. With the greatest respect, the illustrations of the maxim given by Voet put it beyond doubt that in his view the maxim applied both to acquisitive and extinctive prescription. The maxim was also invoked in legal practice. It is cited again by Christinaeus in his Practicarun Quaestionun Rerunique in Supremis Belgarum Curiis actarurn et observatarurnDecisiones vol IV dec 85 nu 3; vol VI dec 4 nu 30. In a procedural document in the Utrechtsche Consultatien it

was stated: 'ende dat naa rechten notoir is, quod ignoranti et non valenti
agere non currat praescriptio' (vol III cons 122). Another advocate said: 'in terminis generalibus nae Rechten is ghedefinieerd non valenti agere

non currerepraescriptionen (vol I cons 112 nu 15; see also vol I cons 75 nu 25). Not surprisingly, the maxim is also to be found in the Observationes Tumultuariae of Bynkershoek (Obs Turn 70 and 3083) and the Observationes TumultuariaeNovae ofPauw (Obs Turn Nov 998 and 1027).

The present maxim was coined by the medieval civilians on the strength of various texts of the CorpusJurisofJustinian. The medieval jurists, however, were well aware that as a maxim it did not constitute a hard and fast legal rule. For instance, the thirteenth-century French jurist Petrus de Bellapertica, professor at Orleans and later Chancellor
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of France, said: 'si tu quaeris nunquid non valenti agere currat prescriptio vel non ad dissolutionem istius brocardici sic distinguitur' (Quaestiones vel Distinctiones quaestio 179). He then discussed the application or nonapplication of the maxim in various cases, as whether the impediment was one of law or of fact, was initial or supervening, and so on. Bartolus (ad D 1.18.6) argued along similar lines. The glossator Azo gave it a positive wording that, if someone has the power to bring an action, prescription will run in regard to both a personal and a real action ('si ergo habet quis potestatem agendi, curritpraescriptioet in actionepersonali et in actione in rem': Summa Codicis ad C 7.33 nu 5). The maxim was also relied upon in medieval legal opinions (for instance Alexander Tartagnus Consilia vol 7 cons 101 nu 21 and Cravetta Consilia cons 116 nu 8). The maxim apparently made a late entry into English law. Broom cited as the earliest source '1 Pothier, by Evans, 451', meaning Evans's translation, published in 1806, of Pothier's Trait des Obligations. Colman J saw the contra non valentem rule's being relevant to the present case because, during the greater part of the prescriptive period, the disputed ground had been held by the Government under a registered long lease while the freehold owner was the Johannesburg Estate Company. The onus, therefore, was on the plaintiff to show that during this period its possession was adverse to the rights of the freehold owner. But in terms of the contra non valentem rule time would not run against the freehold owner unless the occupation of the ground by Morkels had been in conflict with the legal rights of the freehold owner so that the latter had the right and the power to terminate this occupation. The learned judge then put the question: 'But what right did the Johannesburg Estate Co Ltd have to eject a trespasser or otherwise to terminate his occupation after it had parted with possession of the ground under registered long leases?' He went on to say: 'There is ample authority for the proposition that, trespass being an infringement of possession rather than of ownership, an owner who has parted with possession cannot sue for trespass uhless he can show that his reversionary right to possession is injured by the trespass (see Thomas v Guirguis 1953 (2) SA 36 (W)). Thus the Johannesburg Estate Co Ltd, if it had indeed parted with possession in terms of the leases, would have had no right to interfere with the use of the disputed ground by Morkels or by anyone else, during the currency of the leases, unless the use was in breach of some condition in the leases or was such as to prejudice its residuary rights as owner' (at 480).

In the above passage it is first stated that an owner who has parted with possession cannot sue for trespass unless he can show that his reversionary right to possession is injured by the trespass. In the next sentence the conclusion is drawn that in the present case the Johannesburg Estate Co, if it had parted with possession in terms of the leases, would have to prove that the use by Morkels, or anyone else, was such as to prejudice its residuary rights as owner. An owner's 'rever-

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sionary right to possession' and his 'residuary rights as owner' are used here as identical and interchangeable concepts-which they are not. An owner who has parted with the right to possession of a thing will generally retain his other rights as owner of that thing, for instance the ius disponendi. Moreover, in the above context the 'right to possession' and the 'residuary right to possession' are ambiguous concepts. It is not clear whether possession here means civil possession or natural possession. This ambiguity, it is respectfully submitted, has confused the issues in the present case. For the 'ample authority' to be found for these propositions the learned judge cited Thomas v Guirguis 1953 (2) SA 36 (W). In this case Clayden J, on the authority of Voet 6.1.3, Van Rensburg's Estate v Fischat 1938 EDL 65 and Wilson & Hall v Wessels (1891) 8 SC 171, held that an owner who has parted with possession cannot sue for trespass unless he is able to show that his reversionary right to possession is injured by the trespass. Clayden J referred to the following statement of Gane J in Van Rensburg's Estate v Fischat (supra) at 69:
'Both in English and Roman-Dutch law trespass is treated as an injury not to ownership, but to occupation.... Mr Macintosh has argued that if a landlord, who has only for the nonce parted with his right of possession, cannot sue in an action of
trespass unless he is able to show that the trespass is of such a character as necessarily to damage his right of reversion, as according to English cases cited by him he cannot, then afortiori the trustee in the present instance, who has neither possession nor, in any ordinary sense, right of reversion, cannot so sue. I agree with the argument. The law appears to be no different in South Africa, where a tenant may sue for damages for trespass without joining the landlord: see Maasdorp v Malan 1875 Buch 136. No clear case has been cited, but in Wilson and Hall v Wessels (1891) 8 SC 171 at 173 De Villiers CJ clearly contemplated the law as being the same when he said: "We have hitherto looked upon the owners of land as the persons to warn off all persons wrongfully on that land. It may be that the owner must show that his reversion was injured."'

GaneJ did not give any authority for his statement regarding trespass in Roman-Dutch law. This is not surprising. As R G McKerron The Law of Delict 7 ed (1971) 225nl says,
'[t]respass is not treated by the Roman-Dutch law writers as a specific wrong. Under the influence of English law, however, our courts have come to regard it as such, and there is no objection to doing so, provided it is remembered that the conditions of liability for trespass in South African law are not the same as in English law.'

And as the learned author further goes on to point out, in our law liability for trespass is determined by the ordinary principles governing liability in the action under the lex Aquilia and the actio iniuriarum. Clayden J continued by saying that his proposition is supported by Voet. He referred to Voet 6.1.3 in Sampson's translation:
'Nor does it matter whether the owner has full dominium or the mere bare ownership, the right of usufruct being in someone else, in the cases in which the usufruct

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has been taken possession of by some third person, or the usufructuary wishes to hold, not by right of usufruct, but as actual owner.'

The learned judge expressed the view (at 38) that '[tjhis passage seems to indicate that the owner with bare ownership could not sue unless someone else is claiming a right of possession against him, a right which affects his right to possession in reversion'. With respect, this certainly is not what Voet meant to say. Gane's translation more correctly reads:
'Nor does it make any difference whether one has a complete right of ownership
or a naked proprietorship [nuda proprietas] while the usufruct resides in another, so long as the subject of the usufruct is in the possession of a third party, or the usufructuary himself desires to possess it not by right of servitude but by right of


In the previous paragraph (6.1.2) Voet had stated that from the right of ownership arises the rei vindicatio, a real action, by which we claim a thing belonging to us and possessed by someone else. (Ex hoc lure dominii nascitur rei vindicatio, actio scilicet in rem, qua rem nostram ab alio possessam petimus.) The point made by Voet in 6.1.3 is that in order to succeed with the rei vindicatio, the plaintiff does not need to have full ownership: nuda proprietas will suffice. Therefore a right of usufruct will not prevent the owner from vindicating the object of the usufruct from a third party. Exceptionally, the owner may even vindicate his property from the usufructuary himself, viz if the usufructuary should claim that he possesses the property as owner. It is therefore submitted, with the greatest respect, that the proposition attributed by Clayden J to Voet is well-nigh the opposite of the view of Voet. In Wilson & Hall v Wessels (supra) De Villiers CJ, after remarking that the contention that an owner, who has given an option to purchase his land, cannot prevent people trespassing on his land, is 'certainly one of the most extraordinary contentions ever made in a court of justice', went on to say:
'We have hitherto looked upon the owner of the land as the person to warn off all persons wrongfully on that land. It may be quite true that the owner must show
that his reversion was injured. I am of opinion that the respondent's reversion,

whatever that may be, has been injured by the occupation of the appellants in this case. The owner has given certain rights to Mr Ward, to dig for diamonds during the time he has for exercising his option of purchase, and Mr Ward might win
many diamonds, and allow others to do so, but that is very different from allowing the whole world to go in and win many more diamonds than Mr Ward or his

sub-concessionaires could win' (at 173).

These statements of De Villiers CJ hardly support the contention that an owner who granted a lessee the use and enjoyment of his property should have no remedy during the currency of the lease against a third party who took possession of the property. Applied to the present case, the above statement mutatis mutandis might read:
'The owner had given to the lessee the use and enjoyment of the land and the lessee may use and enjoy the land, and allow others to do so, but that is very different

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from allowing the whole world to go in and have the use and enjoyment of the


Colman J also referred to the decision of the Appellate Division in Swanepoel v Crown Mines Ltd 1954 (4) SA 596 (AD) as being, though not precisely in point, illustrative of the relevant principle. He continued:
'There, as here, the plaintiff claimed to have acquired an area of land by acquisitive prescription; but an exception to her declaration was upheld, one of the grounds being that the possession had not been adverse to the rights of the owner. The reason was that the ground was held under mining title, and in terms of the Gold Law the rights to the surface were vested in the State. The registered owner, therefore, had no rights in respect of the surface, and the occupation of the ground had constituted no infringement of such rights as it retained. It was entitled neither to authorize nor to permit the use of the ground by the plaintiff, and as that use was not alleged to have prejudiced the reversionary rights of the owner, no case of adverse user had been made out (per FaganJA at 606)' (at 480).

In his view the same reasoning must apply in a case where the owner's right to use, and to permit the use, of the ground has been suspended, not under the Gold Law, but under a lease. This conclusion, in itself, with the greatest respect, no more than a petitio principii, was found by the learned judge to be supported by a statement of Van Zurck op cit p 887 para XII, which reads: 'Praescriptie den huurder, die het goed van den Verhuurder van een derden had
laten praescriberen, tegengeworpen synde, schaad den Verhuurder niet.'

The only authority given by Van Zurck is Carpzovius Decisiones illustres Saxonicae pars II dec 115 nn 8ff, which work, the learned judge mentioned, was not available to counsel or to himself. Therefore this text of Carpzovius has to be examined somewhat extensively here. The heading of decisio CXV reads: 'Haut nocet Locatori praescriptio opposita conductori.' This decisio was concerned with the following case. In 1566 certain custom duties had been let by the Prince Elector of Saxony to a local council. The council had neglected to collect the duties and in 1633 the treasury had taken the collection in its own hand. Some persons, who claimed that the right to levy this tax had been prescribed, then asked the Faculty of Law of the University of Leipzig for an opinion. After a short discussion of prescription as a mode of acquisition of ownership, Carpzovius observed that, though ignorance on the part of the owner would not prevent prescription from running, this should not be so widely understood as meaning either that there could never be restitutio in integrum against a prescription or that a prescription would not have started to run at all. He then put the question whether prescription would run against the lessor when the lessee had allowed the property of the lessor to be 'acquired' by prescription by a third party (quid vero si colonus vel conductor rem locatoris a tertio praescribipatiatur, num praescriptio haec ipsi locatori damno erit?). He mentioned that the Faculty of Law had been in no doubt that the

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answer should be in the negative. He went on to give four reasons for this view. First, he stated it to be trite law that during the currency of the lease the lessor is not entitled to expel the lessee and to vindicate the land let, or to hamper the lessee in any way, because it will always be open to the lessee to aver that the contract of lease allows him to use and enjoy the property. As authority for this proposition Carpzovius cited D 19.2.7,, and 19.2.33. Invoking the maxim
'non currit praescriptio contra non agere valenteni', which he illustrated

with a few examples, Carpzovius concluded: 'Probant haec omnia,
praescriptionem haud nocere ei, qui agendo illam impedire haud potuerit,

ut proinde merito tutus sit locator apraescriptione,quani conductorisnegligentia

Carpzovius clearly shows that he did not use the argument of the owner's having transferred his ius possidendi to the lessee. His argument was that the contract of lease would prevent the lessor from vindicating his property from the lessee. It is plain that this is no cogent ground for allowing a third party to set up the contract of lease as a defence against a rei vindicatio brought by the lessor as owner of the property. The texts of the Digest cited by Carpzovius relate only to the legal position between the lessor and the lessee: they in no way allow the possessor of a thing to set up as a defence against the owner's rei vindicatio, a contract of lease concluded between the owner and an outside party. The second argument was based on the premiss that one's negligence should only harm oneself and not another. It follows that fault and negligence on the part of the lessee should not harm the lessor. And how, asks Carpzovius, can prescription be prejudicial to a lessor who has not been negligent when prescription was introduced out of aversion to persons who have been negligent in claiming their things back? The third argument was that for the prescription of land knowledge and forbearance (scientia et patientia) on the part of both the possessor or detentor and the owner are required. Therefore land cannot be held to have been acquired by prescription as against a lessor who did not commit an act of forbearance, let alone one who was unaware of the act of his lessee. The fourth argument was that a lessee cannot transfer ownership of the property let to him, because ownership does not vest in him. Consequently this can also not be effected by a fictitious or tacit transfer like prescription. It appears from the above that Van Zurck merely took over the question and the negative answer as formulated by Carpzovius. Carpzovius makes it clear that Van Zurck's statement is only to be taken as authority for the proposition that prescription will not run against the owner because of the negligence of the lessee. The passage, as its wording by itself already suggests, is no authority for the proposition that an owner cannot vindicate his property from a third party because he has parted with possession to a lessee.

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Colman J (at 478) warned against the use of English authority as being an unsafe guide in a South African case relating to acquisitive prescription. A similar sentiment applies with particular force to the law of property. A few passages from W W Buckland and A D McNair Roman Law and Common Law 2 ed (1965) by F H Lawson may illustrate this point. The learned authors wrote:
'This leads to the main contrast between the two systems in this matter. So far is the common law from the sharp distinction of the Roman law between ownership and possession that we learn that there is a hierarchy of actions, a sort of descending
scale from the purely proprietary to the purely possessory. "Possessoriness" has become a matter of degree, all very different from the rule that possession has nothing in common with ownership' (p 67).

'There are no longer in our law any forms of action but every action which is in practice an action for the recovery of personalty seems to be an action in tort or contract based on possession or the right to possess. The plaintiff need not assert ownership, though often no doubt he must prove facts which amount to proof of ownership, or at any rate to evidence of it, in order to justify his claim. But any possession is good against a trespasser and there are different degrees of right to possess, so that all the plaintiff has to prove is that he has a better right to possess

than the defendant has; in fact the old principle of maius ius is still in full operation'


The above passages show how radically the conceptual structure of the English law of ownership and possession differs from that of Roman law. Reference may also be made to the statement of F H Lawson Introduction to the Law of Property (1958) 6: 'Now, English law, although it does on some occasions speak of ownership, does not draw any conclusions from it. Moreover, in the land law no use whatever is made of the notion.' A further statement by Lawson (at 35) is to be noted here:
'A plaintiff seeking to recover possession must prove that he has a right to the immediate possession of the thing. Before examining in greater detail the meaning of this statement it is well to dispose of a number of special considerations. 'Exceptional Cases. First, a person who, in the ordinary acceptation of the term, is an owner, may not have a right to the immediate possession of a thing because if it is land he has leased it, or if it is a movable chattel he has bailed it, for instance hired it out, to another person for a fixed term. During the continuance of the term he cannot recover possession from the lessee or bailee, whereas, if it comes into the possession of a third party, the lessee or bailee will recover possession on the strength of his right to immediate possession, though in order to do so he may have to prove that, but for the lease or bailment, the owner would have had a right to immediate possession.'

These quotations illustrate the different worlds of the English and our law of property. Analogical inferences play an important and indispensable part in legal reasoning and argument. Everardus Loci argumentorum legales, Locus a simili nu 5 cited the statement of the Roman philosopher Boethius: 'Locus a Simili persuasionibus aptissimus est.' However, he also reminded his readers 'nullum simile est idem'.

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Reasoning from analogy is subject to the dangers arising from false analogies. It may be especially fallacious where there is some resemblance in the terminology and concepts used by different legal systems. Superficial resemblance may cover profound difference. Turning to the present case first, it is fallacious reasoning to accept, on the premiss that 'trespass being an infringement of possession rather than of ownership, an owner who has parted with possession cannot sue for trespass unless he can show that his reversionary right to possession was injured', that in our law the lessor-owner during the currency of the lease has no remedy to recover possession from a third party. This is no more than a petitio principii; and the implied exclusion of any other remedy of the owner to recover possession a non sequitur. The fallacy is the inference from a partial resemblance between two legal systems that they are the same in every respect. In the present case the query immediately arises why the action on trespass, in our law a delictual action, should exclude the owner's right to vindicate his property. This exclusion may not be accepted as axiomatic. The opposite is prima facie the case. The delictual actions and the rei vindicatio all have their own scope. In case of an infringement of his right of ownership an owner may have both a delictual action and the rei vindicatio. In Roman law an owner could bring the rei vindicatio against any possessor of the property. A defendant who was entitled to hold the property as against the owner would have to raise this by way of a defence. A salient text is D 6.1.9 (Munro's translation): 'In this action the duty of the judge will be this: the judge must ascertain whether the defendant is in possession; but it is immaterial on what assumed title he is in possession; as soon as I have proved that the property is mine, the party in possession is bound to deliver it up to me, unless he pleaded something by way of exceptio. Some writers however, one of whom is Pegasus, have expressed the opinion that the only kind of possession dealt with in this action is that which is relevant in asking for the Interdict uti possidetis or utrubi. For instance, Pegasus says that where anything is deposited with a man, or is lent him for use, or he hired it, or he is in possession to secure the payment of legacies, or for the sake of dos, or in the name of an unborn child, or because he failed to obtain security for daninum infectun, then, because in none of these cases does he, properly speaking, possess, a vindicatio cannot be brought against him. I hold however that where any person whatever has got a thing in his hands and is able to deliver it over, an action to recover it can be brought.' That an owner who has given another the ius possidendi will be barred from vindicating his property from a third party who has no right to retain the property unless, by virtue of some provision in the agreement or otherwise, the owner has again become entitled to possession of his property, is a proposition foreign to Roman law. In this passage Ulpian made the point that contrary to the older view the rei vindicatio may be brought against a detentor. After the reception of Roman law this universal right of an owner to vindicate his property was also received in the Netherlands, with some exceptions mostly based on the

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principle mobilia non habent sequelam. The universal right of vindication of the owner is clearly stated in an opinion in the Utrechtse Consultatien

vol I cons 86:
'Een eygenaar staet ten allen tijden vry sijn goed a quocunque possessore te vindiceren. Oock onaengesien den derden possesseur mochte wesen bonaefidei possessor.

(See also similar statements of inter alios Grotius 2.3.4 and 5, Voet 6.1.2, Aller Definitien van Beschreve Rechten ch XX, Van Leeuwen Censura Forensis and Huber Hedendaagse Rechtsgeleertheyd

This is also the modem law. The plaintiff in the rei vindicatio must prove, first, that he is the owner of the thing, and, secondly, that the defendant is in possession. (Voet 6.1.34; Kemp v Roper NO (1886) 2 Buch AC 141; White v Adams (1897) 14 SC 160;Judelman v Colonial Government (1909) 3 Buch AC 446; Meyer v Glendenning1939 CPD 88; Henning v Petra Meubels Bpk 1947 (2) SA 407 (T).) It is then for the defendant to show that he is entitled to retain the thing as against the plaintiff. (Nor Properties (Pty) Ltd v Lurie 1951 (3) SA 688 (AD) at 696; Ley v Ley's Executor 1951 (3) SA 186 (AD) at 192; Ebrahim v Deputy Sheriff Durban 1961 (4) SA 265 (D).) The defendant may not plead a ius tertii unless he would hold the thing under the protective umbrella of that ius tertii. (SAR v Fisher'sEstate 1954 (1) SA 337 (AD);

Thipa v Subramany 1954 (4) SA 126 (N); Ruskin NO v Thurgen 1962 (2) SA 737 (AD); Krugersdorp Town Council v Fortuin 1965 (2) SA 335

In our law the question is not whether the owner retained some mythical residuary right to possession. Bare ownership (nuda proprietas) entitles the owner to bring the rei vindicatio. Even such a residuary right as ownership burdened by a usufruct gives the owner the power to vindicate his property from anybody who is not entitled to hold the property as against him. (See in addition to Voet 6.1.3, Gliick Pandecten IX § 584 ad D 6.1 ; Pothier Traite' de la Propriet para 289.) Furthermore, it is fallacious to put forward on the analogy on English law the view that 'a lessor parts with possession to the lessee'. In our law, contrary to English law, the lessor does not part with possession, but only with the detention, the actual holding of the property concerned. The lessor remains the legal possessor and the lessee is merely detentor of the thing concerned. Therefore a third party taking possession of the thing let with the intention to hold it as his own will deprive the lessor and not the lessee of the possession of the thing. It seems unnecessary to cite any authority for the above truisms. It would more than suffice to refer to the exposition of Colman J in the present case regarding the distinction between possessio civilis and possessio naturalis or detentio, but I would add a reference: Carpzovius Jurisprudentia Forensis Romano-Saxonica pars II cons IV def 4 nu 4: 'Conductor vero, quia non possidet, numquam praescribit.'
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This passage shows how far Carpzovius was from contemplating the transfer of the ius possidendi to the lessee. An argument ab absurdo may contribute to show how little the concept of a ius possidendi which the lessor transfers to the lessee so that the lessor will be prevented from recovering possession of the thing from a third party fits into the framework of our law. In our law an owner who has let his land or other property will not be barred during the currency of the lease from vindicating his property from a third party who acquired the land from the lessee in good faith and for value. It would be anomalous if this chimerical ius possidendi would exclude the rei vindicatio against a person who had one-sidedly taken possession of the land. To conclude, a battle royal appears to have been waged on and around the maxim 'contra non valenteni nulla currit praescriptio'. With the greatest respect, this battle brings to mind the outcry of a French officer watching the charge of the Light Brigade: 'C'est magnifique mais ce n'estpas la guerre.' J E SCHOLTENS

There is clear practical benefit in the decision in Nel v Cloete 1972 (2) SA 150 (AD) that 'waar 'n skuldeiser moontlike terugtrede as gevolg van mora beoog hy in die kennisgewing van in mora-stelling die skuldenaar ook kan meedeel dat, by gebreke aan vervulling binne die gestelde termyn, hy hom die reg voorbehou om uit die kontrak te tree' (at 163H). It must nevertheless be said, with due respect, that certain statements in the case can with advantage be amplified and certain other statements may require re-examination. The facts were that the plaintiff (appellant) bought the defendant's (respondent's) stand, with the house thereon, on 3 October 1968 for R7 000, the price to be paid by means of a deposit of R1 750 and the balance on registration of transfer. A bank guarantee for the balance was to be furnished within 120 days. On 5 February 1969 the plaintiff, through the estate agent, asked L, the attorney mentioned in the deed of sale, to take the necessary steps to obtain transfer; and on 11 February 1969 the attorneys for the building society which had granted plaintiff a loan asked L for a description of the property in order that the bond might be prepared. L said that he had asked for the title deed but that it was not yet to hand. In fact it had been lost, and, after correspondence with, and several visits to, L, the plaintiff's attorney wrote to the defendant on 13 June 1969 (ie after the reasonable period allowed for performance in the contract had expired-see 178D) saying, inter alia, 'geliewe nou kennis te neem dat u hiermee aanges8 word om toe te sien dat die eiendom op naam van kli~nt geregistreer word voor of op die

HeinOnline -- 89 S. African L.J. 8 1972

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