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Assignment 2 - Inaedificatio
Law of Property (RDL2002H)
University of Cape Town
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RDL2002H PROPERTY LAW ASSIGNMENT 2 INAEDIFICATIO IN SOUTH AFRICAN LAW LEO BOONZAIER BNZLEO002 Tutorial group: Tuesday 2nd 084 415 3912 14th September 2009 Word count: 1492 PLAGIARISM DECLARATION 1. I know that plagiarism is wrong. Plagiarism is to use another’s work and pretend that it is one’s own. 2. I have used the footnote convention for citation and referencing. Each contribution to, and quotation in, this assignment from the work(s) of other people has been attributed, and has been cited and referenced. 3. This assignment is my own work. 4. I have not allowed, and will not allow, anyone to copy my work with the intention of passing it off as his or her own work. 5. I acknowledge that copying someone else’s assignment or essay, or part of it, is wrong, and declare that this is my own work. SIGNATURE: STUDENT NO.: BNZLEO002 Inaedificatio refers to the permanent attachment of buildings and other structures to land in accordance with the Roman maxim ‘superficies solo cedit’, 1 whereby the attachments accede to the land on which they have been built; that is, the movable becomes the property of the owner of the immovable by operation of law. 2 Whether the movable has been sufficiently attached to the immovable for it to have lost its legal identity will depend on the facts of each case, considered in light of three factors: (1) the nature and purpose of the movable; (2) the manner and degree of its annexation; and (3) the intention at the time of the attachment. 3 The first factor requires that the movable ‘must be in its nature capable of acceding to realty’. 4 For example, a window will typically be taken to serve the immovable to which it is attached, while it is difficult to see how a car, say, would ever be capable of doing so. The second criterion is more opaque. Roman-Dutch sources required the attachment to be ‘to the earth by means of nails’, but unsurprisingly the test is now more elastic, physical connection (of any kind) or mere weight being sufficient Where the separate identity of the movable has been lost by its attachment (for example, where a brick has been built into a wall), or if separation would involve substantial injury to either the immovable or the attached movable, accession will be strongly implied. 6 However, since modern technology allows virtually anything to be removed without damage, 7 the question should more properly be understood as whether it can be removed without unreasonable time and cost It is the intention of the movable owner (rather than that of the annexor) that must be considered, the rationale being that no-one should be deprived of their property without their consent. 9 Although it is true that certain judgments have repeatedly referred to the annexor’s intention, 10 it is only where the annexor and owner do not coincide that the matter has been considered in earnest; and in those cases an emphatic preference for the intention of the owner has been expressed. 11 The owner should have intended that the movable remain permanently attached to the immovable. This does not mean ‘for eternity’, 12 but rather ‘indefinitely’, 13 or at least ‘for quite a few years’.14 1 ‘Buildings erected form part of the land’. F du Bois (ed.) Wille’s Principles of South African Law 9th ed (2007) 498; PJ Badenhorst et al. Silberberg and Schoeman’s The law of property 5th ed (2006) 147. 3 Olivier v Haarhof & Co 1906 TS 497 at 500, cited in MacDonald v Radin NO 1915 AD 454 at 466. 4 MacDonald, supra (note 3) at 466. 5 Ibid. 6 Ibid. at 469. See generally du Bois, supra (note 2) at 499. 7 See e. Unimark Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd 1999 (2) SA 986 (T) at 1008. 8 Du Bois, supra (note 2) at 499-500. 9 Ibid. at 501. 10 Olivier, supra (note 3) at 500; Standard-Vacuum Refining Co v Durban City Council 1961 (2) SA 669 (A) at 678; Theatre Investments (Pty) Ltd v Butcher Bros. Ltd 1978 (3) SA 682 (A) at 688. 11 See especially MacDonald, supra (note 3) at 467 and the more contemporary Unimark case, supra (note 7) at 1002. 12 Badenhorst, supra (note 2) at 153. The key case here is Standard-Vacuum Refining, supra (note 10). At 679: ‘[it] is not necessary, in order to prove an intention to attach permanently, to show that the person attaching intended the attachment to continue into all eternity’. 13 Du Bois, supra (note 2) at 501. 14 Unimark, supra (note 7) at 1005. 2 guidelines are provided for determining the relative weight to be attached to the various criteria where the professed and objectively-discerned intentions are opposed. What is clear is that the Transvaal Provincial Division was making a deliberate move away from the Melcorp decision, which gave an unwarranted degree of primacy to the ipse dixit. The same court made another similar attempt in Unimark It was stressed that intention must be the starting point and most important factor, 28 making clear that the essence of the new approach is to be preserved. However, it was held that the intention must be discerned within the context of all relevant facts, assessed using reasonableness, common sense or the prevailing standards of society. 29 Thus the court meant to consider the perspective of a reasonable member of society so as to remedy the aforementioned failure of the new approach to account adequately for the importance of publicity. While this attempt is to be welcomed, stating that the relevant factors must be assessed using common sense or the prevailing standards of society does very little to make the inaedificatio enquiry more principled or lucid. The policy considerations at play are so fundamentally opposed, though, that it is hard to see how the lack of clarity can be fully addressed. While publicity is important, no owner should be deprived of property without his consent (a principle supported by s 25(1) of the Constitution). 30 Attaching weight to the owner’s intention respects this latter principle, while invariably having a negative effect upon publicity. In addition, many of the difficult cases in this area stem from and have implications for hire-purchase agreements in respect of the attached movable, 31 and therefore an equitable solution ought to consider the intention professed in that agreement. Finally, requiring the costly removal of a firmly-affixed movable causes economic waste, 32 whether or not the attachment accords with the owner’s intention. Badenhorst et al 33 suggest that the Supreme Court of Appeal may soon overhaul this area of law, and that Court’s conspicuous reluctance to settle the contentious matters of law arising in Konstanz34 supports this view. But because of these diametrically-opposed policy considerations it is hard to foresee any helpful changes. What is clear is it justice would not be served by ignoring intention. To be sure, some of the criticisms of the law regarding inaedificatio are overstated The use of intention in the accession enquiry clearly conflates the dogmatic distinction between original and derivative acquisition: the distinguishing feature of the former (which includes accession) is supposedly that it is a unilateral act which does not depend on the intention of the initial owner. However, it is simply not clear that the erosion of this rigid distinction is a bad thing, notwithstanding the distinction’s ‘usefulness for the purposes of basic classifications and 27 Supra (note 7). Ibid. at 1001. 29 Ibid. 30 Constitution of the Republic of South Africa, 1996; hereinafter ‘the Constitution’. See Unimark, supra (note 7) at 1001, which cites this policy consideration and its recognition in MacDonald, supra (note 3). 31 See most obviously Theatre Investments, supra (note 10); Melcorp, supra (note 15); Unimark, supra (note 7). 32 Du Bois, supra (note 2) at 503. 33 Supra (note 2) at 152. 34 Supra (note 15). 35 See Unimark, supra (note 7) at 1000, in which the Court attempts to defuse much of the academic criticism of the inaedificatio rules and suggests that a reformulation of the tests and criteria is undesirable. 28 explanations in textbooks’.36 And, as suggested, the complete omission of intention will likely fall foul of the valuable principle that no-one should be deprived of their property without their consent. Also, it means little to question the origins of the emphasis on intention or, in particular, to state that it introduces a mechanism of English law into a Roman-Dutch framework;37 the question is whether the law as it stands is good. In fact, the more basic question is, ‘What is the current state of the law?’ In particular, ‘Which approach is likely to be preferred (in the absence of any drastic overhaul of the legal framework)?’ It has already been argued that the difference between the traditional and new approaches, while slight, is not illusory. Thus this question is important. It emerges from the foregoing discussion that the traditional approach is all but dead. The very deliberate departure from this approach almost thirty years ago is evident in Theatre Investments and Melcorp, the former of which was decided in the precedential Appellate Division to scholarly praise. 38 It is true that our courts have subsequently recognised the shortcomings of these decisions, but they have certainly not chosen to affect a remedy by reviving the traditional approach. Unimark gives a particularly emphatic indication that any modifications of the inaedificatio enquiry should not alter the primacy of intention, 39 and there is simply no evidence that our courts are willing to suspend this intention enquiry (as the traditional approach demands). Konstanz leaves it open to the Supreme Court of Appeal to revive the traditional approach, but this would constitute a marked divergence from the jurisprudence of the last thirty years, and one which would be misguided considering the various arguments advanced in this essay. BIBLIOGRAPHY 36 Unimark, supra (note 7) at 1000. Ibid. 38 See Lewis (1979) 96 SALJ 94. 39 As mentioned above. In Unimark, supra (note 7) at 1001 the Court, having canvassed the development of the law pertaining to inaedificatio, expresses a very clear preference for the primacy of the intention enquiry. 37
Assignment 2 - Inaedificatio
Course: Law of Property (RDL2002H)
University: University of Cape Town
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