Fine wool products v director of valuations

pg 499
pg 509
uAldine timbers

Unless a new kind or species of

thing comes into existence as a
result of the mixing of
materials belonging to the
maker together with materials
belonging to another person,
the case is not one
ofspecificatio under Roman-
Dutch law, but rather one of
accessio.In cases of accessio,
where it is doubtful which of
two things, which have been
intermingled to forma new
thing, is the principal thing and
which is the accession, the rule
to be applied is that the
lessvaluable is taken to accede
to the more valuable.1932 TPD
at Page 338A wood and iron
movable building belonging to
S was pulled down by S's
father, who then proceededto
erect a new and larger building
out of the materials so obtained
together with new
materialswhich he had bought,
and whose value was far in
excess of that of the old
materials. It was not clearthat
the father's intention in so
doing was merely to improve
his son's property.Held, that
since no new kind or species of
thing had come into existence,
the rules of specificatio didnot
apply, and the property in the
re-built building did not on this
ground vest in the father of
S.Held, further, however, that if
the rules of accessio were
applied, as it had not been
shown that thefather had
intended to improve his son's
property the rule that the less
valuable acceded to themore
valuable, applied, and the new
building was therefore the
property of the father
Botes v Toti Development
The point argued by Mr. Kirk-Cohen, on behalf of the applicants, did not embrace the
description of the land on which the block of flats was to be erected. His attack on the
sufficiency of the description of what was sold was confined to the unit itself and more
particularly that part of the F unit called a section. For a proper understanding of these
concepts and indeed for a proper adjudication of the problem raised by the argument it
is necessary (and this provides a convenient stage) to briefly consider the salient
features of Act 66 of 1971. This must be done against the background of the basic
principle of our common law of property that there G can be no ownership of a building
apart from the land on which it stands. (Wille, Principles of South African Law, 6th ed.
by J. T. R. Gibson, p. 174). Where buildings are permanently annexed to land the owner
of the land by means of accessio becomes the owner of the buildings; omne quod
inaedificatur solo cedit. Separate ownership of horizontal layers not being recognised
(Hahlo and Kahn, The Union of South Africa: The Development of its Laws and
Constitution, p. 581), it was accordingly not H possible to divide a building into flats each
of which was the object of a separate right of ownership. MASON, J. in Rocher v
Registrar of Deeds, 1911 T.P.D. 311, was expressing the same principle when he stated
the following (at p. 315):
   "As I understand our law, the owner of the surface of the land is the owner of the whole of the
land and of all minerals in it; he is the owner of what is above and what is below. It is unnecessary
to determine how far in these days of airships (which at present have not arrived in any numbers
in South Africa), the dominium extends upwards."
1978 (1) SA p208
NESTADT J
Times may have changed but (until 1971) our law of property, in this respect, did not. Of
necessity, however much our Roman-Dutch law is a virile living system (Pearl Assurance
Co. Ltd. v Union Government, 1934 A A.D. 560 at p. 563) and conscious as our Courts
have been of the desirability that it keep pace with the requirements of changing
conditions and notions (Blower v Van Noorden, 1909 T.S. 890 at p. 905), our system of
judicial precedent virtually precludes Judge-made modifications to basic legal principles.
In certain instances where such B principles have required modification, the Legislature
has intervened to supply the remedy. The Sectional Titles Act is an example. Prior to its
enactment alternative methods of achieving individual flat "ownership" had to be
resorted to. Perhaps the most common was the acquisition of shares in a limited liability
company owning a block of flats. It is obvious, however, that such shareholders were not
owners of the flats.