n Tydskrif vir die Suid-Afrikaanse Reg - Eiendomsverwerwing of -verlies onder 'n tydsbepaling of 'n voorwaarde en die privaatregtelike implikasies vir onteiening (deel 2)
|Article Title||Eiendomsverwerwing of -verlies onder 'n tydsbepaling of 'n voorwaarde en die privaatregtelike implikasies vir onteiening (deel 2)|
|© Publisher:||Juta Law Publishing|
|Journal||Tydskrif vir die Suid-Afrikaanse Reg|
|Affiliations||1 University of Johannesburg and 2 University of Leiden, The Netherlands|
|Publication Date||Jan 2011|
|Pages||601 - 625|
ISI Social Science
The acquisition or loss of ownership is never conditional on a time limit - the implications for an abortive expropriation
Ownership as mother right has the unique qualification that in principle it has an unlimited duration. Limited real rights (eg servitudes or real security rights such as mortgages or pledges) are per definition always limited in duration. No legal system should provide for a mortgage bond of undefined and unlimited duration; that is also the position with a usufruct or habitatio that will come to an end - at the latest - with the demise of the holder of the limited right. The qualification "limited" does not merely apply to the limited entitlements of the holder of the right but also to the fact that sometime in future the consequential limitation placed by this right on the entitlements of the owner should end and the owner as holder of the mother right should automatically once more enjoy the unlimited entitlements of this real right. This principle is perceived to be covered by the "holy principle" known as perpetuum et simplex.
As a consequence of the principle that ownership can by its nature not be transferred for a limited period only, the judicial value of the often encountered term in agreements of sale that is perceived to provide for an automatic reversion of the ownership to the transferor should a particular condition be fulfilled, is highly suspect. Within an abstract system of acquisition of property rights, as is the case in the South African law, the ownership cannot on fulfilment of a resolutive condition that is only encompassed in the obligatory agreement automatically as per magic wand revert to the estate of the original transferor. At most the original transferor may acquire a personal right to demand transfer of the real right, but until the demand is met, the ownership remains in the estate of the transferee. This is the position even if insolvency of any of the parties' estates intervenes. In the light of the fact that any form of expropriation is an extraordinary intervention in the normal legal sphere concerning the property to be expropriated, any expropriation by the state should be restrictively interpreted in a legal system that abides by the rule of law. In such a legal system expropriation may never be used as an excuse to arbitrarily impoverish the citizen by a diminution of his total assets. The payment of adequate compensation for the expropriated asset should consequently seamlessly coincide with the expropriation as a quid pro quo, otherwise the erstwhile owner is unjustly impoverished. A mere spes of possible future compensation with an uncertain content does not rectify the illegal result because a spes does not alter the already diminished total assets of the expropriated owner with a single cent.
Unless the proclaimed public purpose that was used as the basis for the expropriation is in reality attained within a reasonable period after the expropriation, the rei vindicatio of the perceived expropriated owner should revive and he should be entitled to reclaim possession of his property from the expropriating authority.
The principle "cessante ratione cessat lexí" applies to expropriation also and a crooked governmental official cannot hide behind expropriation to acquire a priced farm under the pretext that it will be used for public schooling just to have a sudden change of heart and donate it to his mistress. The example of aborted expropriation is not an instance where the expropriated ownership was, in contrast to the stated perpetuum principle, "only transferred" for a limited period to the expropriating authority. By the very nature of expropriation the expropriated or seized object should cease to be classified as res alicuius within the broader category of res in commercio, and is supposed to become res publicae (for the public purpose) forming part of the res extra commercium where there is no room for the private law concept of private ownership. If the perceived public purpose that was supposed to underlie the expropriation does not materialise (ie the farm is donated to the mistress), the expropriation and consequential suspension of the rei vindicatio of the owner were conditional, and the ownership was never transferred from the owner to the state. Transfer of ownership presupposes a real agreement and fulfilment of the requirements of Act 47 of 1937. These requirements are never met in expropriation circumstances. In the same manner that the suspended rei vindicatio can be relied on once the pledge comes to an end without the need to retransfer anything to the owner to entitle him to rely on his rei vindicatio, the owner who is the victim of an aborted expropriation where the published public purpose has not been accomplished can reclaim possession of his property.
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