e.g.: - Requirements: nova species new thing must be created old thing / material does not exist any more 8
old thing cannot be restored to its original form also if it can be restored but value of new thing exceeds value of old thing / material no legal relationship between specificator and owner of old thing / material without permission of owner of old thing Q: bona fides ? Voet: not requirement Grotius: is requirement SA writers: divided, but Voet’s opinion is preferred - Effect: specificator becomes owner of new thing previous owner has claim for compensation 5. CONFUSIO et COMMIXTIO - Definition when similar things of same quantity of different owners are mixed confusio : liquids & liquid solids commixtio : solids - Requirements: no legal relationship between owners inseparable lose their identity can only be separated with great costs cannot tell what belong to which owner not a res nova not accessio Note: Bona fides not a requirement - Effect: confusio : co-owners of mixture in relation to value of their material in 9
mixture commixtio : separate owners of a part in relation to value of their material in mixture 6. ACQUISITION OF FRUITS - Definition when person who is entitled to it becomes owner of fruits fructus pendentes – hanging fruit fructus separatio - after separation fructus perceptio - after gathering - Rule: owner of principle thing becomes owner of fruits exceptions: bona fide possessor usufructuary lessee mala fide possessor? - does not become owner of fruits 7. ACQUISITIVE PRESCRIPTION Definition acquisition of ownership by uninterrupted possession of a thing for 30 years Prescription Act, 18/1943 Prescription Act, 68/1969 Old Act ▐ New Act [30/11/70] ▐ [1/12/70] Common Law still applicable except in cases where it conflicts directly with express wording of the act - Swanepoel v Crown Mines Ltd 1954 (4) SA 596 (A) 603 - 604 10
- Requirements: possession uninterrupted for 30 years Possession : - Who must possess? acquirer of ownership personally predecessors in title mediate possession - Welgemoed v Coetzer and Others 1946 TPD 701 joint possession - Baker N.O. v Chadwick 1974 (1) SA 461 (D) - Kind of possession required? (a) Common Law : possessio civilis corpus animus domini - Welgemoed v Coetzer and Others 1946 TPD 701 - Morkels Transport 474 B – D, 476 E – C (b) Sec 2(1) of Old Act : “ nec vi, nec clam, nec precario ” nec vi without force / peaceably nec clam openly, not secretly so openly that the owner would have been aware of it if (s)he had shown reasonable care regarding his/her property - See Smith v Martin’s Dative (1899) 16 S.C. 148 at 151; Welgemoed v Coetzer and Others 1946 TPD 701 at 720 nec precario without revocable permission of owner - see Malan v Nabygelegen Estates 1946 AD 562 at 573 - 574 11
adverse user added by case law: no contract or other legalrelationship - see Malan v Nabygelegen Estates 1946 AD 562, 574
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- Summer '16
- DR Sulaiman