Acquisitive prescription in view of the property clause

[摘要] ENGLISH ABSTRACT: Acquisitive prescription ('prescription), an original method of acquisition of ownership, isregulated by two prescription acts. Prescription is mostly regarded as an unproblematic areaof South African property law, since its requirements are reasonably clear and legally certain.However, the unproblematic nature of this legal rule was recently brought into question bythe English Pye case. This case concerned an owner in England who lost valuable landthrough adverse possession. After the domestic courts confirmed that the owner had lostownership through adverse possession, the Fourth Chamber of the European Court of HumanRights in Strasbourg found that this legal institution constituted an uncompensatedexpropriation, which is in conflict with Article 1 of Protocol No 1 to the EuropeanConvention on Human Rights and Fundamental Freedoms 1950. This judgment may haverepercussions for the constitutionality of prescription in South African law, despite the factthat the Grand Chamber – on appeal – found that adverse possession actually constitutes amere (constitutional) deprivation of property. Therefore, it was necessary to investigatewhether prescription is in line with section 25 of the Constitution.To answer this question, the dissertation investigates the historical roots of prescription inRoman and Roman-Dutch law, together with its modern requirements in South African law.The focus then shifts to how prescription operates in certain foreign systems, namelyEngland, the Netherlands, France and Germany. This comparative perspective illustrates thatthe requirements for prescription are stricter in jurisdictions with a positive registrationsystem. Furthermore, the civil law countries require possessors to possess property with themore strenuous animus domini, as opposed to English law that merely requires possessionanimo possidendi. The justifications for prescription are subsequently analysed in terms ofthe Lockean labour theory, Radin's personality theory and law and economics theory. Thesetheories indicate that sufficient moral and economic reasons exist for retaining prescription incountries with a negative registration system. These conclusions are finally used to determinewhether prescription is in line with the property clause. The FNB methodology indicates thatprescription constitutes a non-arbitrary deprivation of property. If one adheres to the FNBmethodology it is equally unlikely that prescription could amount to an uncompensatedexpropriation or even to constructive expropriation. I conclude that prescription is in line withthe South African property clause, which is analogous to the decision of the Grand Chamberin Pye.

[发布机构] Stellenbosch University