One way to acquire property in South Africa is through acquisitive prescription. This method does not rely on the transfer of rights from a predecessor in title; instead, it acknowledges specific factual criteria that, when met, grant legal rights and title to ownership. This article will outline the requirements necessary for successfully claiming ownership through acquisitive prescription, with a focus on the Prescription Act 18 of 1943 and the Prescription Act 68 of 1969.
Acquisitive prescription is regulated by the Prescription Act 18 of 1943 (“1943 Act”) as well as the Prescription Act 68 of 1969 (“1969 Act”). According to section 2(1) of the 1943 Act, acquisitive prescription is the acquisition of ownership through the possession of another person’s movable or immovable property, or the use of servitude in respect of immovable property, continuously for 30 years nec vi, nec clam, nec precario (without force, without secrecy, without permission).
Section 1 of the Prescription Act 1969 (Act 1969) stipulates that “subject to the provisions of chapter I and chapter IV, a person shall by prescription become the owner of a thing which he has possessed openly and as if he were the owner thereof for an uninterrupted period of thirty years or for a period which, together with any periods for which such thing was so possessed by his predecessors in title, constitutes an uninterrupted period of thirty years.”
Requirements for Acquisitive Prescription
The following requirements must be satisfied in order for one to be successful in their claim for acquisitive prescription:
- Possession (or use, in the case of acquiring limited real rights).
- Openness (nec clam).
- Possession as if the owner (This means that the possessor must act as though they are the rightful owner of the property. This involves having the intent to claim ownership (animus) as part of civil possession, along with elements from previous requirements, such as not holding the property by permission (nec precario) and demonstrating an adverse use of the property.
- Continuous possession for 30 years.
1. POSSESSION
The type of possession required for prescription is not defined in the 1943 Act. The 1969 Act is slightly clearer in this regard, stipulating that the possessor needs to possess “openly and as if he were the owner”. The individual claiming ownership of the property must demonstrate both physical control and a corresponding mental attitude towards the property. This means that possession should not only involve tangible control but also reflect the mindset of an owner or the intention to acquire ownership. This type of possession is referred to as civil possession, which encompasses both objective and subjective elements: physical possession combined with animus domini, or the intention to acquire the property.
2. OPENNESS (NEC CLAM)
This requirement requires the property to be held peacefully and openly. Possession must be held in an open manner and patent to the general public and also in a manner that the owner would have been able to see and take notice of the possession and the various acts of the user associated therewith.
3. POSSESSION AS IF THE OWNER
This requirement stipulates that the property must not be held under revocable permission or any contractual or legal relationship, such as a lease or usufruct. There should be no grant of permission implied. If a tacit agreement can be demonstrated, it may allow one to contest the claim of acquisitive prescription. The Prescription Act mandates that the potential acquirer must act as if they are entitled to possess and use the property rights. This requirement aligns with the dominus element of civil possession, incorporating aspects of both nec precario and adverse use.
4. CONTINUOUS POSSESSION FOR THIRTY YEARS
This element requires the property to have been held for an undisturbed period of thirty years. In Welgemoed v Coetzer and others 1946 it was held that the required continuity of occupation need not be absolute continuity, for it is enough if the right is exercised from time to time as occasion requires and with reasonable continuity. In practice, the claimant needs to do no more than demonstrate that possession, including that of predecessors in title insofar as this is relevant, endured for the thirty-year period to a sufficient degree to justify the conclusion that the exercise of rights of ownership was continuous.
In light of the foregoing, it is clear that acquisitive prescription is a valid principle in our law that allows a possessor, who has satisfied all the requirements as set out in the acts and in terms of common law, to obtain the title of the property by virtue of their possession and use of the property for a specific period of time.
Reference list:
- Prescription Act 18 of 1943
- Prescription Act 68 of 1969
- Mark Evan Investments CC v Groenveld and Another (11747/2017) [2023] ZAKZDHC 74
- Welgemoed v Coetzer and others 1946 TPD 701 at 720
- Acquisitive Prescription in View of the Property Clause, Ernst Jacobus Marais 2011
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