Law of Property

...

This is explained in the Standard-Vacuum Refining Co[23] case in which the annexor was the owner of the land and of the attached movables. Van Winsen AJA explained that the attachment may actually be incorporated into the immovable thing or it may be so secure that separation will cause substantial injury to either the immovable or movable thing.[24] Therefore, if the separation causes substantial injury then the movable was attached with the intention of permanency and have become part of the immovable thing. Winsen AJA stated that if it is not possible to determine whether there was an intenion of permanency, the objective or subjective intention of the annexor may be decisive.[25] Theatre Investments[26] followed a somewhat different approach. In this particular case the annexor was also the owner of the attached movables, but a lease with the owner of the land made provision for acquisition of ownership of all attachments by the lessor on termination of the lease. The court stated that all the direct and inferential evidence as to the intention would have to be considered together and that in the light of that evidence it would have to be decided on a balance of probabilities whether the annexor intended a permanent attachment.[27] Therefore Mostert et al explain that although the parts were divisible, the total value of the property would be significantly less when the separation occurs.[28] It is at this issue that the courts differ in finding an approach to the divisibility of things for purposes of determining ownership.[29] There are, therefore, three possible approaches that the courts have established.[30]

The three approaches

Three approaches have been developed by legal scholars to determine the order in which these criteria must be considered and their relative importance.[31] The first approach, the ‘traditional approach’ which is set out in the Macdonald[32] case entails that the first two criteria give an indication of permanency, but if they are inconclusive one has to look at the intention of the person annexing it. In the Macdonald case[33] the issue was whether certain refrigerating machinery had acceded to the property and become immovable.[34] The contract stipulated that the plant made up of the machinery would remain the property of the appellants until all payments had been made.[35] It was argued on behalf of the appellants that the machinery was never immovable and that it formed no part of the building.[36] Innes C.J established that controversy appears in cases of accession when detachment of a movable can occur with relative ease.[37] The order was that the court allowed the appellants to remove the plant, as long as no damage was made to the property and that it was restored back to its original state. The Macdonald[38] case can therefore be used as a perfect example of the traditional approach. The court first objectively observed whether the plant had been permanently attached to the property and whether removal of it would cause serious damage.[39] It was only when it was concluded that the first two criteria give an inconclusive indication of permanency that the court looked at the intention of the person annexing it.

The Standard-Vacuum Refining[40] case as explained earlier is another case that establishes whether a movable has acceded to an immovable. Van Winsen AJA explains that only when no clear conclusion can be drawn on objective assessment, may the intention of the annexor be decisive.[41]

The second approach, the ‘new approach’, states that the most important factor to be considered is the intention of the person who attached the movable thing. The afore mentioned Theatre Investments[42] case is exemplary of the new approach as it was declared on appeal that the crucial factor to establish with accession was the intention of the annexor.[43] It was argued by the court that evidence of the annexor’s intention could be taken from many sources. These included their own evidence as to their intention, the nature of movable and immovable and the mode of annexation.[44] The order of the court was that the things were created and designed specifically for this exact theatre, which led to the conclusion that the annexor intended they should remain there permanently.[45]

In the Sumatie (Edms) Bpk[46] case a third heavily criticised approach, the omnibus approach, was suggested. This approach entails that the principal consideration should be the purpose of the annexation.[47]

Conclusion

In conclusion, there is much controversy as to which approach should be followed by the South African courts.[48] I Knobel notes that objective assessment and subjective intention must be taken into account when determining whether accession has occurred fairly.[49] The Theatre Investments[50] case is an ideal example of how the objective observation could be unfair if subjective intention was not taken into account. This is why both the new and traditional approaches account for both objective and subjective factors when guarding against arbitrary deprivation of property.[51] It is therefore with regards to the legal principles applicable to inaedificatio that the South African courts decide what approach to use in the divisibility of things for purposes of determining ownership.

Words: 2065

Bibliography

Books

Mostert et al The Principles of the Law of Property (2010) South Africa: Oxford University Press Southern Africa (Pty) Ltd.

Journal Articles

A Pope “Encroachment or Accession? The Importance of the Extent of Encroachment in Light of South African Constitutional Principles” (2007) 124 SALJ 537.

I Knobel “Accession of movables to land, South African law and Dutch law” (2012) 45 (1) The Comparative and International Law Journal of Southern Africa.

I Knobel “Accession of movables to movables and inaedificatio- South Africa and

...