LPRO: Unit 6- Original acquisition of ownership
Introduction
In SA law a distinction is made between original and derivative acquisition of ownership: **NB**
1. Original acquisition of ownership is not dependent on the lawful ownership of a legal
predecessor, while this is required for derivative acquisition of ownership.
This means that the benefits and obligations of the previous owner are not usually passed to the
new owner in the case of original acquisition of ownership.
If there is no previous owner (legal predecessor) acquisition of ownership takes place through
appropriation (occupatio) of a thing that is not owned (res nullius) or of a thing that has been
abandoned by its owner (res derelicta).
2. In the case of original acquisition of ownership, the co-operation of the previous owner is not
necessary, but derivative acquisition of ownership can take place legally only with the previous
owner’s co-operation.
In certain cases of original acquisition of ownership there is a legal predecessor who is the
owner, but ownership is passed to the new owner without the legal predecessor’s co-operation.
This takes place by means of accession, prescription and expropriation.
Acquisition of ownership in these cases takes place by operation of the law and ownership is not
transferred.
Six ways of acquiring ownership according to original method:
1. Appropriation
2. Accession
3. Manufacture
4. Mixing of solids/ fusing of liquids
5. Expropriation
6. Prescription
1. Appropriation (occupatio) (Know Latin terms!!!)
Appropriation: the unilateral exercising of physical control over a corporeal thing that can be owned
(res in commercio) but which is not owned by anyone (res nullius or res derelict) with the intention
of becoming the owner.
Requirements:
1. Physical control (corpus);
2. With the intention of the owner (animus domini);
3. Of a corporeal thing not belonging to anyone.
, 2
Physical control (corpus)
1. It must be possible to physically control the thing.
2. The nature of the physical control depends on the circumstances of each case and on the nature
of the object and it is objectively determined.
3. The physical control needn’t be lawful.
4. Although the exercise of unlawful physical control might be a crime, the controller can become
owner of the object for instance in the case of pornographic material.
5. In some instances, the acquisition of ownership is prohibited by statute, for example in the case
of uncut diamonds.
Reck v Mills 1990
Facts:
The respondent attached a rope with a buoy to the condenser of a shipwreck to indicate that he had
physical control over the condenser for the purpose of salvaging it.
Court held:
The rope with the buoy was not an adequate indication of the physical control of the respondent
over the condenser since control must place the controller in the position where he can use the
thing as he wishes.
An indication of physical control would have been the loosening of the condenser from the
wreck and the subsequent attachment of the buoy to the condenser.
Intention of owner (animus domini)
The physical control must be exercised with the intention of the controller to be owner.
Corporeal thing which does not belong to anyone (OBJECT)
A distinction is made between things which are not owned by anyone (res nullius) and things which
have been abandoned by the owner (res derelictae).
Things with no owners (Res nullius):
Definition:
Res nullius are things with no owners, they are things which can be owned but which are not owned
by anyone at a particular moment. Ownership of these things can be acquired by appropriation.
The following principles apply in the case of things with no owners:
1. According to principles of common law, wild animals, birds, fish, insects, reptiles have no owners
(res nullius) if they are in their natural state or if they were under control but have now escaped
and cannot be caught again, have disappeared from sight or are within sight but can’t be
pursued. In the case of exercising physical control over a wild animal with the intention to
become owner, the controller becomes owner by appropriation- Mathenjwa NO v Magudu
Game Co Ltd.
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