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n Tydskrif vir die Suid-Afrikaanse Reg - Sub hasta-veilings en die onderskeid tussen oorspronklike en afgeleide wyses van regsverkryging
A judicial sale known as subhastatione and the typical consequences of an original versus a derivative acquisition of property
Although the law of property under the Roman-Dutch law knowingly differentiates between original and derivative modes of acquisition of property, the material consequences of such a classification may be lost in some everyday applications of the legal process. The crux of the classification of a mode of acquisition as "original" is the acknowledgment that the acquirer of the right acquires a "new" unlimited real right, because his acquisition is unfettered by the legal position of a previous owner. The nemo plus iuris principle only applies to derivative modes of acquisition, as does the qui prior in tempore principle. All original modes of acquisition are completed the second the last objective requirement has been met regardless of any additional administrative requirements. The registration of immovable property in the deeds register plays no role in the material change in ownership brought about, eg, by fulfilling the last second of the term for acquisitive prescription. As from that second the previous possessor is the new owner and any limited real right that previously limited the original owner's ownership has also lapsed with that ownership because there is no legal mode to justify any limitation to the new owner's ownership to which he had not by real agreement agreed to. The same outcome applies to any registered mortgage bond that used to limit the original owner's ownership.
A judicial sale subhastatione is another example of original acquisition of ownership. Since Roman times the sanctioning of the sale symbolised by the upright spear (hasta) under which the judicial auction was completed entails that the highest bidder acquires a new unfettered real right of ownership that may not be challenged by excussion by anybody claiming a better title to the property. The authority of the law vouches for the sanctity of the original acquisition.
At the latest, the instant the property has been allocated to the highest bidder, any previous claims or limited real rights that pressed on the original ownership are dissolved. As a consequence of this logical application of the well-known principles, the presumed requirements contained in section 70 of the Magistrates' Courts Act 32 of 1944, which refers to registration in the case of immovable property that had been the subject of a judicial auction, have no material bearing on the change in the legal position: "A sale in execution by the messenger shall not, in the case of movable property after delivery thereof or in the case of immovable property after registration of transfer, be liable to be impeached as against a purchaser in good faith and without notice of any defect." The sanctity of the new acquisition should not be dependent on the registration, because there was no "transfer" of the ownership from the previous owner to the new owner due to the classification of this mode of acquisition as "original". At most, the new owner must comply with the registration requirements before he may transfer any real right or limited real right to the property. This is merely an administrative requirement - section 16 of the Deeds Registries Act 47 of 1937 only governs "transfers" or "conveyance" of real rights from one person to another, and that is limited to derivative modes of acquisition.
Any previously registered limited real right still reflected in the deeds registry must be cancelled as a dead letter and no longer reflecting the true legal position. Any mortgagee who negligently neglects to rely on his limited real right and to complain timeously against the published judicial sale loses his limited real right and reverts to the position of a concurrent creditor against his debtor and can lay no claim to preferential treatment with regard to the proceeds of the judicial sale requested by another creditor.
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